DirecTV, LLC v. Nexstar Media Group, Inc.

24-981
DirecTV, LLC v. Nexstar Media Group, Inc.
In the
United States Court of Appeals
FOR THE SECOND CIRCUIT
AUGUST TERM 2024
No. 24-981
D IREC TV, LLC,
Plaintiff-Appellant,
v.
N EXSTAR MEDIA G ROUP , INC ., MISSION BROADCASTING, INC .,
WHITE KNIGHT BROADCASTING, INC .,
Defendants-Appellees.*
On Appeal from the United States District Court
for the Southern District of New York
ARGUED: DECEMBER 9, 2024
D ECIDED: DECEMBER 16, 2025
Before: C HIN, S ULLIVAN, and MENASHI , Circuit Judges.
DirecTV, LLC, is a multichannel video programming
distributor that provides customers with satellite and streaming
access to broadcast television programming. DirecTV purchases the
rights to distribute television stations from broadcasters, and it then
* The Clerk of Court is directed to amend the caption as set forth above.

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includes the stations in subscription plans that it sells to consumers.
The defendants are broadcasters that own broadcasting rights for
popular television networks in specific geographic markets. DirecTV
sued the defendants on the ground that the defendants engaged in a
horizontal price-fixing conspiracy intended to force DirecTV to
accede to higher prices or face the loss of programming. The district
court dismissed the antitrust claims, holding that DirecTV lacked
antitrust standing because (1) it did not actually pay the
supracompetitive prices demanded by the alleged price-fixing
conspiracy and therefore could not establish antitrust injury, and
(2) as a nonpurchaser suffering only an “indirect” and “speculative”
injury, it was not an efficient enforcer of the alleged antitrust
violation.
We hold that DirecTV has antitrust standing to proceed on its
federal antitrust claims. Lost profits from a reduction in output
represent a cognizable antitrust injury, and DirecTV has plausibly
alleged that its lost profits flowed directly from the output-reducing
effects of the alleged price-fixing conspiracy. Additionally, we
conclude that DirecTV is an efficient enforcer of the antitrust laws. We
reverse the judgment insofar as the district court held that DirecTV
lacked antitrust standing to pursue its federal antitrust claims. We
vacate the judgment insofar as the district court declined to exercise
supplemental jurisdiction over the remaining state law claims. We
remand for further proceedings consistent with this opinion.
Judge Sullivan dissents in a separate opinion.
PAUL MEZZINA, King & Spalding LLP, Washington, DC
(Olivier N. Antoine, Jared Levine, Crowell & Moring
LLP, New York, NY, Amanda Shafer Berman, Crowell &

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Moring LLP, Washington, DC, Jordan L. Ludwig,
Crowell & Moring LLP, Los Angeles, CA, on the brief), for
Plaintiff-Appellant.
Lauren Willard Zehmer, Covington & Burling LLP,
Washington, DC, David W. Haller, Covington & Burling
LLP, New York, NY, Chris Schwegmann, Lynn Pinker
Hurst & Schwegmann LLP, Dallas, TX, for Defendant-
Appellee Nexstar Media Group, Inc.
S TEPHEN J. O BERMEIER (Frank Scaduto, Enbar Toledano,
Michael J. Showalter, on the brief), Wiley Rein LLP,
Washington, DC, for Defendant-Appellee Mission
Broadcasting, Inc.
Kan M. Nawaday, Venable LLP, New York, NY, Craig A.
Gilley, Venable LLP, Washington, DC, Elizabeth C.
Rinehart, Venable LLP, Baltimore, MD, for Defendant-
Appellee White Knight Broadcasting, Inc.
A NDREW N. DE L ANEY , Attorney (Jonathan S. Kanter,
Assistant Attorney General, Doha G. Mekki, Principal
Deputy Assistant Attorney General, John W. Elias,
Deputy Assistant Attorney General, David B. Lawrence,
Policy Director, Alice A. Wang, Counsel to the Assistant
Attorney General, John J. Sullivan, Daniel E. Haar,
Nickolai G. Levin, Attorneys, on the brief), United States
Department of Justice Antitrust Division, Washington,
DC, for the United States as Amicus Curiae.
MENASHI , Circuit Judge:
Plaintiff-Appellant DirecTV, LLC, is a multichannel video
programming distributor that provides customers with satellite and

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streaming access to broadcast television programming. DirecTV
purchases the rights to distribute television stations from
broadcasters, and it then includes the stations in subscription plans
that it sells to consumers. Defendants-Appellees Nexstar Media
Group, Inc. (“Nexstar”), Mission Broadcasting, Inc. (“Mission”), and
White Knight Broadcasting, Inc. (“White Knight”) are broadcasters
that own broadcasting rights for popular television networks in
specific geographic markets. DirecTV sued the defendants for
violations of the federal antitrust laws and for related contract and
tort claims arising under New York law. According to DirecTV, the
defendants engaged in a horizontal price-fixing conspiracy intended
to force DirecTV to accede to higher prices or face the loss of
programming. DirecTV alleges that it did not renew its licensing
agreements with Mission and White Knight because it declined to pay
the supracompetitive fees, resulting in station blackouts that led to the
loss of subscribers and profits.
The district court dismissed the antitrust claims, holding that
DirecTV lacked antitrust standing because (1) it did not actually pay
the supracompetitive prices demanded by the alleged price-fixing
conspiracy and therefore could not establish antitrust injury, and
(2) as a nonpurchaser suffering only an “indirect” and “speculative”
injury, it was not an efficient enforcer with respect to the alleged
antitrust violation. DIRECTV, LLC v. Nexstar Media Grp., Inc., 724
F. Supp. 3d 268, 280 (S.D.N.Y. 2024). On appeal, DirecTV seeks
reversal of the holding that it lacked antitrust standing. DirecTV
argues that its lost profits stemming from station blackouts represent
a cognizable antitrust injury and that the four efficient-enforcer
factors support antitrust standing in this case.
We agree. We hold that DirecTV has antitrust standing to
proceed on its federal antitrust claims. We reverse the judgment

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insofar as the district court held that DirecTV lacked antitrust
standing to pursue its federal antitrust claims. Lost profits resulting
from a reduction in output represent a cognizable antitrust injury,
and DirecTV plausibly alleges that its lost profits flowed directly from
the output-reducing effects of the alleged price-fixing conspiracy.
Additionally, DirecTV plausibly alleges that it is an efficient enforcer
of the antitrust laws because it was the direct target of the defendants’
purported price-fixing conspiracy and it has a longstanding history of
reaching agreements with the defendants. We vacate the judgment
insofar as the district court declined to exercise supplemental
jurisdiction over the remaining state law claims because that decision
depended—at least in part—on the dismissal of the federal antitrust
claims. We remand for further proceedings consistent with this
opinion.
BACKGROUND
On appeal from the grant of a motion to dismiss, we accept as
true the facts alleged in the complaint and draw all reasonable
inferences in favor of DirecTV. See Henry v. County of Nassau, 6 F.4th
324, 328 (2d Cir. 2021).
I
Nexstar, Mission, and White Knight are broadcast station
groups that own local affiliates of popular television networks in local
markets known as designated market areas (“DMAs”). Each
defendant owns stations affiliated with the “Big-4” networks: ABC,
CBS, NBC, and Fox.
DirecTV is a multichannel video programming distributor
(“MVPD”) that provides customers with satellite and streaming
access to broadcast television programming. MVPDs such as DirecTV
create bundled television packages that enable viewers to access

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multiple channels through a single subscription. To attract and retain
subscribers, MVPDs must offer local affiliates of the Big-4 networks,
which are “typically the highest ranked in terms of audience share
and ratings in each DMA.” App’x 34 (¶ 80).
To provide its subscribers access to a particular broadcast
network, the MPVD negotiates a retransmission consent agreement
(“RCA”) with a broadcast station group. These agreements generally
give the MVPD the right to carry the full-time feed of a station in
exchange for a negotiated “retransmission consent fee.” Id. at 14 (¶ 4).
If a negotiation fails or an RCA expires without renewal, the MVPD
loses transmission rights and the broadcast content is “blacked out”
for the MVPD’s subscribers until a new agreement is reached. Id. at
29 (¶ 62). The MPVD seeks to avoid blackouts because subscribers
may cancel their subscriptions if they lose access to Big-4 stations.
To promote competition among broadcasters, regulations of
the Federal Communications Commission and the federal antitrust
laws generally prohibit a single broadcast station group from owning,
operating, or controlling two or more of the Big-4 stations within any
given DMA. This is known as the “Duopoly Rule.” Id. at 14 (¶ 5).
When a broadcast group wants to acquire a second Big-4 affiliate
within a single DMA, it generally must divest one of its Big-4 stations
to another broadcaster to comply with the Duopoly Rule. Some large
broadcast station groups, including Nexstar, have developed a
practice of transferring the divested Big-4 stations to “shell” station
groups, known in the industry as “sidecars.” Id. at 27 (¶¶ 55-56).
Under the sidecar business model, the large broadcast group typically
exercises operational and financial influence over the sidecar and
performs the basic functions of station operation. But FCC regulations
require the sidecar to remain independent in key respects. Among
other things, the sidecar must negotiate its own RCAs with MVPDs

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over Big-4 stations in “overlap” DMAs—that is, in markets where
both the sidecar and the large broadcast group own a Big-4 station. Id.
at 15 (¶ 9).
In recent years, Nexstar has engaged in high-profile
acquisitions of other broadcast groups and has become the largest
American broadcaster, with 200 owned or operated stations in 116
American markets. See id. at 30 (¶ 65). When a proposed acquisition
would result in Nexstar owning more than one Big-4 station in a
particular DMA, Nexstar divests a Big-4 station to one of its sidecars
and then enters into relationships with those entities. See id. at 30-31
(¶ 67). Typically, Nexstar’s sidecars “retained nominal ownership
interests in the stations themselves, but Nexstar fully coordinated
their competitive direction.” Id. at 31 (¶ 67).
Mission and White Knight are two sidecars of Nexstar. At the
time the complaint was filed, Mission owned Big-4 stations in twenty-
three DMAs, and White Knight owned Big-4 stations in two DMAs.
In each of these markets, Nexstar maintained a competing Big-4
station. See id. at 32-33 (¶¶ 71-74).
Despite the separate ownership of Mission and White Knight,
Nexstar includes their financial data in its filings with the Securities
and Exchange Commission because Nexstar controls key activities
affecting the sidecar companies’ economic performance. Nexstar has
told investors that it has historically collected “substantially all” of
these companies’ available cash and expects to continue doing so. Id.
at 33 (¶ 75). Additionally, Nexstar holds options to purchase the
companies’ station assets and to assume their liabilities at any time.
II
In June 2022, DirecTV began negotiating the renewal of its
RCAs with Mission and White Knight. Despite federal regulations

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that prohibit Nexstar from coordinating with its sidecar companies
during RCA negotiations, Mission and White Knight entered into an
agreement “with Nexstar to raise prices and extract supracompetitive
retransmission consent fees from DIRECTV in ‘overlap’ DMAs.” Id.
at 15 (¶ 9). DirecTV alleges that Mission and White Knight
“effectively relinquished decision-making authority to Nexstar” and
that Nexstar “orchestrated” the negotiations through a single
consultant, Eric Sahl, who was “the exclusive and common negotiator
and spokesperson for all of [Nexstar’s] sidecars, including Mission
and White Knight.” Id. at 16 (¶¶ 10-11). Sahl did not conduct
independent negotiations for each of the companies but instead
coordinated contractual terms in order to serve Nexstar’s interests.
When DirecTV attempted to negotiate directly with the management
teams at Mission and White Knight, it was allegedly told that all
negotiations had to proceed through Sahl.
According to the complaint, Sahl demanded supracompetitive
fee increases that were “radically disproportionate” to Mission’s and
White Knight’s station portfolios and were “intentionally calculated
to prevent the parties from reaching an agreement.” Id. at 37 (¶¶ 97,
99). During the negotiations, Sahl allegedly referenced non-public
information about Nexstar’s business strategies and made demands
that undermined Mission’s and White Knight’s independent
economic interests but benefited Nexstar.
After DirecTV refused to pay the demanded rates, Mission and
White Knight withdrew their signals in October 2022, causing a
blackout of their stations for nearly one million DirecTV subscribers.
Nexstar, Mission, and White Knight then issued materially identical
press releases concerning the blackouts. DirecTV alleges that the
identical statements in the three press releases originated from
Nexstar.

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According to DirecTV, Nexstar’s alleged price-fixing
conspiracy with Mission and White Knight served two purposes.
First, Nexstar would benefit directly from the higher prices charged
by Mission and White Knight because it “receives substantially all of
their profits.” Id. at 33 (¶ 77). Second, Nexstar was preparing for its
own contract renewal negotiations with DirecTV. DirecTV claims that
by directing its sidecars to raise rates, Nexstar could rely on those
precedents to demand similarly inflated rates during its own
negotiations with DirecTV.
III
On March 15, 2023, DirecTV commenced this action against
Nexstar, Mission, and White Knight, alleging antitrust violations
under § 1 of the Sherman Act, 15 U.S.C. § 1, as well as breach of
contract and tort claims under New York law.
With respect to the Sherman Act claim, which is the focus of
this appeal, the complaint alleges that the “relevant product market
in this case is the market for retransmission consent of Big-4 stations.
In this market, broadcast station groups such as Nexstar are the
‘sellers’ and MVPDs are the ‘buyers.’” App’x 34 (¶ 78). DirecTV
alleges that “Big-4 stations are typically the highest ranked in terms
of audience share and ratings in each DMA, primarily due to their
unique and high-value content, including professional sports,
popular primetime network programs, local news, and tentpole
events.” Id. (¶ 80). As a result, “[d]uring retransmission consent
negotiations, MVPDs know that subscribers may cancel their service
if they do not have access to Big-4 stations because such a blackout
prevents them from watching local news and weather, prime time
network shows, tentpole events (such as The Oscars and The Emmys),
and live sports (such as NFL, NBA, MLB, and NHL games, as well as

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college football and basketball games) on the affected Big-4 stations.”
Id. at 29 (¶ 63). DirecTV alleges that broadcast station groups use the
threat of “potential subscriber losses associated with a broadcast
station group’s stations going dark” to increase their bargaining
leverage. Id. (¶ 64).
DirecTV contends that Nexstar, Mission, and White Knight
engaged in a horizontal price-fixing conspiracy that was specifically
intended to force DirecTV to accede to higher retransmission consent
fees or face the loss of programming. DirecTV alleges that it “has been
deprived of a fair competitive process and has been forced to either
accept higher prices or lose access to Mission’s and White Knight’s
networks. Choosing the lesser of two evils, DIRECTV has refused
Defendants’ supracompetitive, price-fixed demands, resulting in a
reduction in output” in the form of blacked-out stations. Id. at 51
(¶ 156). DirecTV claims that thousands of customers canceled
subscriptions due to the blackouts, resulting in substantial lost profits.
In its prayer for relief, DirecTV seeks monetary damages for lost
subscriber revenue and a permanent injunction prohibiting Nexstar
from unlawfully coordinating on retransmission consent negotiations
with Mission, White Knight, or other sidecar companies.
On June 26, 2023, the defendants moved to dismiss the
complaint. On March 20, 2024, the district court granted the motion
and dismissed DirecTV’s antitrust claims for lack of antitrust
standing. The district court declined to exercise supplemental
jurisdiction over the remaining state law claims. The district court
concluded that DirecTV had Article III standing but failed to
plausibly allege antitrust standing. Specifically, the district court
decided that the complaint established neither that DirecTV suffered
an antitrust injury nor that it was an efficient enforcer of the antitrust
laws.

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With respect to antitrust injury, the district court held that
horizontal price fixing can cause anticompetitive harm only through
the “payment of supracompetitive prices.” DIRECTV, 724 F. Supp. 3d
at 278. The district court reasoned that because DirecTV chose not to
pay the allegedly fixed prices “but instead made the unilateral
decision to abandon RCA negotiations,” its losses “flow from its own
choice to exit the market” rather than from the anticompetitive
conduct. Id. The district court further held that—because it was a
nonpurchaser suffering only an “indirect” and “speculative” injury—
DirecTV had not alleged that it would be an efficient enforcer of the
antitrust laws against the alleged conspiracy. Id. at 280. Following the
entry of the judgment, DirecTV timely appealed.
DISCUSSION
“We review a district court’s grant of a motion to dismiss de
novo, accepting as true all factual claims in the complaint and drawing
all reasonable inferences in the plaintiff’s favor.” In re Am. Express
Anti-Steering Rules Antitrust Litig., 19 F.4th 127, 137 (2d Cir. 2021)
(quoting Henry, 6 F.4th at 328).
DirecTV argues that the district court erred by dismissing its
federal antitrust claims for lack of antitrust standing. DirecTV
contends that the district court correctly held that it adequately
pleaded Article III standing but incorrectly held that (1) payment of
overcharges is the sole type of injury for which a private consumer
plaintiff may recover in a price-fixing case, and (2) DirecTV is not an
efficient enforcer of this antitrust lawsuit. We address each argument
in turn.
I
We begin with the defendants’ argument that DirecTV lacks
Article III standing. To establish constitutional standing, “a plaintiff

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must show (i) that he suffered an injury in fact that is concrete,
particularized, and actual or imminent; (ii) that the injury was likely
caused by the defendant; and (iii) that the injury would likely be
redressed by judicial relief.” TransUnion LLC v. Ramirez, 594 U.S. 413,
423 (2021). The defendants maintain that the district court misapplied
these standards and that, under a correct application, DirecTV has not
adequately alleged either causation or redressability.
The district court held that DirecTV adequately alleged
causation because “to establish constitutional standing, a plaintiff
need not allege that its injury is ‘plausibly fairly traceable, but, rather,
that the injury is possibly fairly traceable.’” DIRECTV, 724 F. Supp. 3d
at 277 (alteration omitted) (quoting Dennis v. JPMorgan Chase & Co.,
343 F. Supp. 3d 122, 156 (S.D.N.Y. 2018)). Other district courts in this
circuit have used the “possibly fairly traceable” standard when
describing the pleading requirements for Article III standing.1 We
agree with the defendants that this formulation is incorrect.
Our precedents explain that a plaintiff “must allege facts that
affirmatively and plausibly suggest that it has standing to sue.”
Amidax Trading Grp. v. S.W.I.F.T. SCRL, 671 F.3d 140, 145 (2d Cir.
2011). Throughout a litigated case, each of the three elements of
1 See, e.g., Toretto v. Donnelley Fin. Sols., Inc., 523 F. Supp. 3d 464, 472
(S.D.N.Y. 2021); A.H. by & through Hester v. French, 555 F. Supp. 3d 21, 34-35
(D. Vt. 2021); Hoeffner v. D’Amato, 605 F. Supp. 3d 467, 476 (E.D.N.Y. 2022);
Doe v. Columbia Univ., No. 20-CV-6770, 2022 WL 4537851, at *17 (S.D.N.Y.
Sept. 28, 2022); Xu v. HHS, No. 22-CV-3539, 2023 WL 5740416, at *4
(E.D.N.Y. Sept. 6, 2023); Sarno v. Sun Life & Health Ins. Co. (U.S.), No. 22-CV-
968, 2024 WL 291624, at *5 (E.D.N.Y. Jan. 25, 2024), overruled in part on other
grounds, No. 22-CV-968, 2024 WL 1364341 (E.D.N.Y. Mar. 31, 2024); M.V.B.
Collision Inc. v. State Farm Ins. Co., No. 22-CV-7969, 2024 WL 3379335, at *4
(E.D.N.Y. July 11, 2024).

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standing “must be supported in the same way as any other matter on
which the plaintiff bears the burden of proof, i.e., with the manner and
degree of evidence required at the successive stages of the litigation.”
Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992). At the pleading stage,
the plaintiff may rely on factual allegations in the complaint. But those
factual allegations, when credited, must “allow[] the court to draw
the reasonable inference” that the plaintiff suffered an injury caused
by the defendant that a court could redress. Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). The requirement that a pleading allow for that
reasonable inference “asks for more than a sheer possibility” that the
elements of standing are satisfied. Id.
To be sure, “[w]e have cautioned against arguments that
‘would essentially collapse the standing inquiry into the merits.’”
SM Kids, LLC v. Google LLC, 963 F.3d 206, 212 (2d Cir. 2020) (quoting
Baur v. Veneman, 352 F.3d 625, 642 (2d Cir. 2003)). But we have
exercised such caution because “[t]he standing question is distinct
from whether [the plaintiff] has a cause of action.” Carver v. City of
New York, 621 F.3d 221, 226 (2d Cir. 2010). As a result, “[o]ur threshold
inquiry into standing ‘in no way depends on the merits of the
[plaintiff’s] contention that particular conduct is illegal.’” Whitmore v.
Arkansas, 495 U.S. 149, 155 (1990) (quoting Warth v. Seldin, 422 U.S.
490, 500 (1975)). In conducting the standing inquiry, we “put aside”
the merits of the plaintiff’s claims and “consider whether he has
established the existence of a ‘case or controversy.’” Id. To the extent
that we have emphasized that a plaintiff need not establish
entitlement to relief to meet the elements of Article III standing, we
have done so to distinguish the standing inquiry from the merits—
not to exempt standing from the normal plausibility standard that
applies to all factual allegations at the pleading stage.

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Applying the correct standard, we conclude that DirecTV has
plausibly alleged both causation and redressability. The defendants
argue that DirecTV’s theory of causation is “too speculative and too
attenuated” to confer standing because its allegations rest on
speculative assumptions about whether the parties would have
reached an agreement absent the alleged conspiracy and whether
subscribers would have remained with DirecTV in the absence of
content blackouts. Appellees’ Br. 18.
We disagree. DirecTV alleges that the defendants conspired to
demand “radically disproportionate” fees that were “intentionally
calculated to prevent the parties from reaching an agreement.”
App’x 37 (¶¶ 97, 99). DirecTV further alleges that when it refused the
inflated demands, Mission and White Knight pulled their signals,
causing blackouts for DirecTV subscribers that directly and
foreseeably led to subscriber cancellations and lost profits. Viewed in
the light most favorable to DirecTV, these allegations allow for the
reasonable inference that the defendants’ alleged price fixing caused
the breakdown in negotiations and the resulting subscriber losses.
The existence of possible alternative explanations for DirecTV’s
injuries does not defeat standing at the pleading stage. It is sufficient
that the alleged harm was “likely attributable at least in part” to the
defendants’ anticompetitive conduct. Dep’t of Com. v. New York,
588 U.S. 752, 768 (2019). The possibility that broader market trends
might have contributed to DirecTV’s subscriber losses does not
render implausible DirecTV’s theory that at least some of the harm it
suffered was fairly traceable to the defendants’ conduct.
The defendants also argue that DirecTV has not plausibly
alleged that its injury is redressable. Because the defendants retain
discretion over whether to contract with DirecTV—and could refuse

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to sign an RCA for reasons unrelated to a price-fixing conspiracy—
the defendants insist that judicial relief cannot redress the harm to
DirecTV of failing to obtain an RCA. But DirecTV does not seek a
judicial order directing the defendants to sign an RCA. As noted,
DirecTV has plausibly alleged that its past economic harm was fairly
traceable to the defendants’ conduct. An award of damages can
redress a past economic injury. To the extent that DirecTV seeks
prospective injunctive relief, it does so to prevent further
anticompetitive coordination. DirecTV requests an injunction
prohibiting the defendants from coordinating RCA negotiations and
from sharing competitively sensitive information. We need not decide
at this stage whether DirecTV will necessarily be entitled to that relief.
To establish standing to seek it, however, DirecTV must plausibly
allege that a “risk” of future harm “would be reduced” if it were to
receive that relief. Massachusetts v. EPA, 549 U.S. 497, 526 (2007). In
light of its allegations that anticompetitive coordination led to an
injury that had not occurred under previous market conditions,
DirecTV has satisfied that standard. We conclude that DirecTV has
Article III standing to maintain its suit.
II
We next consider whether DirecTV has plausibly alleged
antitrust standing. “It is a well-established principle that, while the
United States is authorized to sue anyone violating the federal
antitrust laws, a private plaintiff must demonstrate ‘standing.’”
Daniel v. Am. Bd. of Emergency Med., 428 F.3d 408, 436 (2d Cir. 2005).
The doctrine of antitrust standing “originates in the Supreme Court’s
recognition that … ‘Congress did not intend the antitrust laws to
provide a remedy in damages for all injuries that might conceivably
be traced to an antitrust violation.’” Id. at 436-37 (quoting Associated
Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters (AGC),

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459 U.S. 519, 534 (1983)). The antitrust standing requirement
“prevents private plaintiffs from recovering damages” under the
federal antitrust laws “merely by showing injury causally linked to
an illegal presence in the market.” Gatt Commc’ns, Inc. v. PMC Assocs.,
LLC, 711 F.3d 68, 76 (2d Cir. 2013) (internal quotation marks and
alteration omitted).
To establish antitrust standing, “a private plaintiff must show
both that (1) ‘it suffered a special kind of antitrust injury’ and that
(2) ‘it is a suitable plaintiff to pursue the alleged antitrust violations
and thus is an efficient enforcer of the antitrust laws.’” Am. Express,
19 F.4th at 138 (quoting Gatt, 711 F.3d at 76). The district court
concluded that DirecTV lacked antitrust standing because it had not
plausibly alleged either that it suffered antitrust injury or that it was
an efficient enforcer of the antitrust laws with respect to the purported
violation. We disagree on both points.
A
We employ a three-step process to determine whether a
plaintiff has alleged an antitrust injury. First, the plaintiff must
“identify the practice complained of and the reasons such a practice
is or might be anticompetitive.” Gatt, 711 F.3d at 76 (alteration
omitted) (quoting Port Dock & Stone Corp. v. Oldcastle Ne., Inc., 507 F.3d
117, 122 (2d Cir. 2007)). Second, the court must “identify the actual
injury the plaintiff alleges” by looking “to the ways in which the
plaintiff claims it is in a worse position as a consequence of the
defendant’s conduct.” Id. (internal quotation marks omitted). Third,
“the court must ‘compare the anticompetitive effect of the specific
practice at issue to the actual injury the plaintiff alleges.’” Harry v.
Total Gas & Power N. Am., Inc., 889 F.3d 104, 115 (2d Cir. 2018) (quoting
Gatt, 711 F.3d at 76). “It is not enough for the actual injury to be

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‘causally linked’ to the asserted violation.” Gatt, 711 F.3d at 76
(quoting Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 489
(1977)). “Rather, in order to establish antitrust injury, the plaintiff
must demonstrate that its injury is ‘of the type the antitrust laws were
intended to prevent and that flows from that which makes or might
make defendants’ acts unlawful.’” Id. (alteration omitted) (quoting
Daniel, 428 F.3d at 438). “An antitrust injury ‘should reflect the
anticompetitive effect either of the violation or of anticompetitive acts
made possible by the violation.’” Gelboim v. Bank of Am. Corp., 823 F.3d
759, 772 (2d Cir. 2016) (quoting Brunswick Corp., 429 U.S. at 489).
In this case, the district court concluded that DirecTV failed at
step three because its “injury—lost profits resulting from the
blackouts—does not flow from that which makes Defendants’ acts
unlawful.” DIRECTV, 724 F. Supp. 3d at 278. In reaching that
conclusion, the district court explained that “[t]he antitrust harm that
flows from horizontal price fixing is the payment of supracompetitive
prices.” Id. According to the district court, because DirecTV rejected
the demand for supracompetitive prices and therefore never made a
payment, it could not establish antitrust injury. See id.
We conclude that the district court erred by limiting the
cognizable antitrust injury to the payment of supracompetitive prices
and excluding the antitrust injury of reduced output. Horizontal price
fixing harms competition by “directly interfering with the free play of
market forces.” United States v. Socony-Vacuum Oil Co., 310 U.S. 150,
221 (1940); see also Gelboim, 823 F.3d at 774 (“[H]orizontal price-fixing
is anathema to an economy predicated on the undisturbed interaction
between supply and demand.”). When firms engage in price fixing,
“[p]rice is higher and output lower than they would otherwise be, and
both are unresponsive to consumer preference.” NCAA v. Bd. of
Regents of Univ. of Okla., 468 U.S. 85, 107 (1984). Buyers must pay more

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18
than they would in a competitive market, and output declines as
“fewer consumers are willing to purchase” goods at inflated prices.
Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 336 n.3
(2d Cir. 2008) (Sotomayor, J., concurring); see also Cal. Dental Ass’n v.
FTC, 526 U.S. 756, 777 (1999) (“If firms raise price, the market’s
demand for their product will fall, so the amount supplied will fall
too—in other words, output will be restricted.”) (quoting Gen.
Leaseways, Inc. v. Nat’l Truck Leasing Ass’n, 744 F.2d 588, 594 (7th Cir.
1984)).
The injuries associated with inflated prices and with reduced
output both flow from a horizontal price-fixing conspiracy.
According to the complaint, the defendants’ conspiracy forced
DirecTV to choose either to pay inflated prices “or lose access to the
most popular broadcast television programming.” App’x 14 (¶ 4).
When DirecTV refused to pay the supracompetitive prices, the price-
fixing conspiracy achieved its expected effect—a reduction in output
through blacked-out stations. Because “subscriber losses [are]
associated with a broadcast station group’s stations going dark,” id.
at 29 (¶ 64), the lost profits flowed directly from this output reduction.
The antitrust laws prohibit price fixing to avoid such an artificial
reduction in output. In this way, the alleged injury flowed from an
anticompetitive effect that the antitrust laws aim to prevent: the
artificial suppression of output “below levels dictated by consumer
demand.” City of Oakland v. Oakland Raiders, 20 F.4th 441, 457 (9th Cir.
2021). We conclude that DirecTV has plausibly alleged an antitrust
injury.

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19
B
We next consider whether DirecTV is an efficient enforcer of
the antitrust laws. Whether a plaintiff is an efficient enforcer depends
on four factors:
(1) the directness or indirectness of the asserted injury;
(2) the existence of more direct victims or the existence of
an identifiable class of persons whose self-interest would
normally motivate them to vindicate the public interest
in antitrust enforcement; (3) the extent to which the claim
is highly speculative; and (4) the importance of avoiding
either the risk of duplicate recoveries on the one hand, or
the danger of complex apportionment of damages on the
other.
In re Platinum & Palladium Antitrust Litig., 61 F.4th 242, 259 (2d Cir.
2023) (quoting Am. Express, 19 F.4th at 138). “These four factors need
not be given equal weight: the relative significance of each factor will
depend on the circumstances of the particular case.” IQ Dental Supply,
Inc. v. Henry Schein, Inc., 924 F.3d 57, 65 (2d Cir. 2019).
The district court decided that DirecTV failed to establish that
it is an efficient enforcer of the antitrust laws. We disagree and
conclude that it is an efficient enforcer.
1
“The first efficient-enforcer factor—‘whether the violation was
a direct or remote cause of the injury’—turns on ‘familiar principles
of proximate causation.’” Platinum & Palladium, 61 F.4th at 259
(quoting Am. Express, 19 F.4th at 139). “In the context of antitrust
standing, proximate cause generally follows the first-step rule,”
which requires “some direct relation between the injury asserted and
the injurious conduct alleged.” Am. Express, 19 F.4th at 139-40

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20
(internal quotation marks omitted). Under the first-step rule, “injuries
that happen at the first step following the harmful behavior are
considered proximately caused by that behavior. Accordingly,
‘directness in the antitrust context means close in the chain of
causation.’” Id. at 140 (alteration omitted) (quoting Gatt, 711 F.3d at
78).
In this case, DirecTV plausibly alleges a direct injury from the
purported price-fixing conspiracy. The defendants conspired to raise
the price of DirecTV’s retransmission consent fees to
supracompetitive levels that priced DirecTV out of the market.
Without RCAs with Mission and White Knight, DirecTV reduced its
output by blacking out the transmission of broadcast content for
nearly one million subscribers. Because consumers generally do not
pay the same amount for less supply, DirecTV suffered a loss of
revenue from canceled subscriptions.
This injury occurred at the first step following the defendants’
price-fixing conspiracy. As alleged in the complaint, the defendants
fixed prices specifically to force DirecTV either to pay
supracompetitive retransmission fees or else to lose access to
Mission’s and White Knight’s networks and “suffer the broader
potential subscriber losses associated with … [such] stations going
dark.” App’x 29 (¶ 64). The reduced output—and the associated loss
of profits—was not a “remote” consequence of the alleged antitrust
violation but a direct result of the conspiracy to fix the prices of
retransmission rights.
The district court’s contrary conclusion rested on the premise
that DirecTV was harmed only incidentally or indirectly because it
“did not pay higher prices, but claims to have suffered by losing
customers due to the blackouts.” DIRECTV, 724 F. Supp. 3d at 280.

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21
The payment of supracompetitive prices is one way that fixing the
price of an input may cause injury. But losses from being forced to
reduce output follow just as directly from anticompetitive price
fixing.
The district court characterized DirecTV’s injury as resulting
from an attenuated causal chain involving multiple speculative steps.
The district court described a sequence that began with price fixing,
which led to failed negotiations, which then resulted in blackouts,
which in turn caused subscriber losses, which finally culminated in
lost profits. See id. The first-step rule, however, turns not on the literal
mechanics of anticompetitive effects but on “familiar principles of
proximate causation.” Am. Express, 19 F.4th at 139 (quoting Lotes Co.
v. Hon Hai Precision Indus. Co., 753 F.3d 395, 412 (2d Cir. 2014)). In this
case, forcing DirecTV to choose between increased prices and reduced
output was the object of the conspiracy. There were no intermediate
victims whose injuries caused DirecTV to suffer harm in turn. And
both increased prices and reduced output are consequences of
horizontal price fixing that would be expected—and allegedly were
expected—to cause a purchaser to suffer losses. See App’x 29 (¶ 64).
The losses here represented the direct, foreseeable, and indeed
intended consequence of the defendants’ alleged price-fixing scheme.
This case differs from others applying the first-step rule in
antitrust cases. In American Express Anti-Steering Rules Antitrust
Litigation, the plaintiffs—commercial merchants—did not accept
Amex cards and claimed injury only because “Amex’s competitors,
covered by Amex’s price umbrella, raised their own prices.” 19 F.4th
at 141. The plaintiffs’ theory was that “Amex’s imposition of
increased merchant fees enabled the competitor companies to
increase their own merchant fees,” which the plaintiffs then had to
pay. Id. (internal quotation marks omitted). We held that the

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22
plaintiffs’ injury occurred at a “later step” because the plaintiffs had
no direct relationship with Amex and their alleged harm flowed from
the reactions of Amex’s competitors to Amex’s direct transactions
with its own subscribers. Id. at 135.
In Platinum and Palladium Antitrust Litigation, KPFF—a non-
transacting plaintiff—was allegedly injured because the defendants’
manipulation of benchmark prices for platinum and palladium led
non-conspiring third parties to raise their prices. See 61 F.4th at 259-
60. We held that KPFF’s injury was indirect because it flowed through
an attenuated causal chain dependent on the reactions of third parties
to the manipulated benchmark. “The only transactions that were
required to adopt the benchmark prices were those into which the
defendants entered as part of the [price fixing], and KPFF has
concededly not transacted with the defendants.” Id. at 260.
In this case, by contrast, DirecTV was the counterparty
negotiating RCAs with the defendants. It suffered a direct injury from
the defendants’ coordinated price demands in those negotiations. The
theory of antitrust injury here does not depend on the reactions of
other market participants who themselves transacted directly with
the defendants. “[I]f there are direct victims of the alleged
conspiracy,” the direct victim must be the intended target of the
conspiracy and the direct counterparty: DirecTV. Am. Express, 19 F.4th
at 140 (quoting Gatt, 711 F.3d at 79). Because the alleged injury
occurred at the first step following the defendants’ conduct, the first
factor favors antitrust standing.
2
The second efficient-enforcer factor focuses on the existence of
more direct victims. We ask whether there is “an identifiable class of
persons whose self-interest would normally motivate them to

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23
vindicate the public interest in antitrust enforcement.” Id. at 141
(quoting IQ Dental Supply, 924 F.3d at 65). “Although the existence of
more-motivated plaintiffs is not dispositive, the presence of plaintiffs
who are better situated to vindicate the antitrust laws is relevant to
this second factor,” IQ Dental Supply, 924 F.3d at 66, because it
“diminishes the justification for allowing a more remote party … to
perform the office of a private attorney general,” AGC, 459 U.S. at 542.
Our cases illustrate when the second factor disfavors antitrust
standing. In IQ Dental Supply, we explained that the plaintiff lacked
antitrust standing because it was “further removed from the harm”
than parties “directly affected by the boycott that have already sued
the Defendants.” 924 F.3d at 66. In American Express, merchants who
had direct relationships with Amex and “were harmed at the first step
by Amex’s Anti-Steering Rules” had separately sued. 19 F.4th at 141.
In Platinum and Palladium, the existence of platinum and palladium
sellers who directly transacted with the defendants “diminishe[d] the
justification for allowing a more remote party to perform the office of
a private attorney general.” 61 F.4th at 261 (internal quotation marks
omitted).
This case involves a different scenario. Here, the second factor
favors antitrust standing because DirecTV alleges that it was the
specific and direct target of the defendants’ price-fixing conspiracy.
The defendants argue that “MVPDs that actually paid [the]
purportedly supracompetitive prices would be more ‘efficient
enforcers’ to bring this antitrust claim.” Appellees’ Br. 50. But the
complaint does not allege that the defendants targeted other MVPDs
or that other MVPDs paid fixed prices. Instead, the complaint alleges
that the conspiracy specifically aimed to establish high pricing
benchmarks for Nexstar’s upcoming renewal negotiations with
DirecTV.

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24
Unlike our other cases—in which the plaintiffs had a more
remote connection to the anticompetitive conduct than other potential
or actual plaintiffs—the allegations here indicate that DirecTV was
the sole target of the conspiracy. Taking the allegations as true, we
can identify no more direct victims of the defendants’ alleged
anticompetitive conduct. For that reason, “‘[d]enying [DirecTV] a
remedy on the basis of its allegations’ is ‘likely to leave a significant
antitrust violation undetected or unremedied.’” Am. Express, 19 F.4th
at 141 (quoting AGC, 459 U.S. at 542). The second factor favors
antitrust standing.
3
“The third efficient-enforcer factor concerns the extent to which
the claim is ‘highly speculative.’” Id. (quoting AGC, 459 U.S. at 542).
“Under this factor, we ask whether there would be ‘a high degree of
speculation in a damages calculation.’ When an injury is ‘derivative’
rather than direct, the potential recovery is often ‘highly
speculative.’” Id. (citation omitted) (quoting IQ Dental Supply, 924
F.3d at 66-67). “We also consider whether the ‘alleged effects on the
[plaintiff] may have been produced by independent factors.’” Id.
(quoting AGC, 459 U.S. at 542).
The defendants argue that DirecTV’s claim that it is an efficient
enforcer fails this factor for two reasons. First, “buyers allegedly
priced out of the market typically are inefficient enforcers because
their damages are both too indirect and speculative.” Appellees’ Br.
10 (internal quotation marks omitted). According to the defendants,
“‘[a] nonpurchaser’s injury is … highly speculative’ because ‘we
cannot know’ what would have happened absent the alleged price-
fixing,” id. at 53 (quoting City of Oakland, 20 F.4th at 449), and
“[a]nyone could claim that he or she would have purchased at the

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25
competitive price but was priced out of the market as a result of the
anticompetitive pricing,” id. at 29 (quoting Phillip E. Areeda &
Herbert Hovenkamp, Antitrust Law ¶ 391 (4th ed. 2014)). Second,
DirecTV’s theory of damages rests on “critical assumptions” about
whether the parties would have reached an agreement absent
collusion and whether subscribers would have remained with
DirecTV. Id. at 53. The defendants contend that “[t]here is no way to
know whether and on what terms the parties would have agreed to a
retransmission consent agreement or what lost subscribers can be
attributed to the failed retransmission consent agreement
negotiations.” Id.
Neither argument is persuasive. First, as we have already
explained, DirecTV’s injury of lost profits is direct rather than
derivative. This is not a case involving a hypothetical purchaser that
speculates about what profits it could have obtained if it could have
bought at competitive prices. Rather, DirecTV began with a baseline
in which it had RCAs with Mission and White Knight; it can identify
concrete losses of subscribers and profits during the blackout periods
that occurred when those RCAs terminated. Second, DirecTV alleges
a prior course of dealing in which “the parties had a longstanding
history of reaching agreements every three years.” Appellant’s Br. 38.
That history provides a benchmark for assessing the effect of the
alleged conspiracy. See Montreal Trading Ltd. v. Amax Inc., 661 F.2d
864, 868 (10th Cir. 1981) (“When the nonpurchaser can show a regular
course of dealing with the conspirators, injury may not be inherently
speculative.”).
This case does not resemble those in which courts have rejected
nonpurchaser claims based on concerns about unlimited liability or
speculative damages. See, e.g., id. at 867-68. Unlike cases involving
parties who never dealt with the defendants and seek to recover

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26
hypothetical lost profits, the allegations here reflect a preexisting
business relationship with the defendants and a distinct measure of
damages. Cf. In re Pandora Media, LLC, No. 22-CV-809, 2022 WL
19299126, at *7 (C.D. Cal. Oct. 26, 2022) (concluding that the alleged
antitrust injury was not speculative when the plaintiff alleged a
“status quo” of individual licensing practices before the defendant’s
formation and alleged that the defendant’s “formation and
aggregation of comedians’ works [was] the cause of [the plaintiff]
either paying supracompetitive royalties or ceasing offering streamed
comedy performances”). We conclude that calculating damages
would not be so “highly speculative” that DirecTV should be denied
antitrust standing based on the third factor. Am. Express, 19 F.4th at
141 (quoting AGC, 459 U.S. at 542).
4
The fourth efficient-enforcer factor reflects the importance of
“avoiding either the risk of duplicate recoveries on the one hand, or
the danger of complex apportionment of damages on the other.” Id.
at 142 (quoting AGC, 459 U.S. at 543-44). This factor “guards against
‘pass-on theories that would require a court to divide damages from
the same violation among multiple plaintiffs.’” Platinum & Palladium,
61 F.4th at 261 (quoting Am. Express, 19 F.4th at 143). “The concern
arises when ‘[t]he damages to which [the plaintiff] lays claim’ are
‘exactly the same damages [other parties] could have claimed.’” Am.
Express, 19 F.4th at 142 (quoting IQ Dental Supply, 924 F.3d at 67).
This factor does not undermine DirecTV’s claim to antitrust
standing. The allegations indicate that DirecTV was the target of the
conspiracy and no other MVPDs have brought similar antitrust claims
against the defendants. This case does not rely on “pass-on theories

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27
that would require a court to divide damages from the same violation
among multiple plaintiffs.” Id. at 143.
Based on the efficient-enforcer factors, we conclude that
DirecTV has plausibly alleged that it is an efficient enforcer of the
antitrust laws in this case. Accordingly, DirecTV has antitrust
standing to proceed on its federal antitrust claims. We reverse the
judgment insofar as the district court dismissed the complaint based
on the opposite conclusion. Because the dismissal of the federal
antitrust claims affected the decision of the district court to decline to
exercise supplemental jurisdiction over the remaining state law
claims, we vacate the judgment insofar as the district court declined
to consider those claims.
CONCLUSION
We reverse the judgment insofar as the district court held that
DirecTV lacked antitrust standing to pursue its federal antitrust
claims. We vacate the judgment insofar as the district court declined
to exercise supplemental jurisdiction over the state law claims. We
remand to the district court for further proceedings consistent with
this opinion.

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RICHARD J. S ULLIVAN, Circuit Judge, dissenting:
Whether or not DirecTV suffered an “antitrust injury” in this horizontal
price-fixing case, I agree with the district court that DirecTV failed to show that it
is an “efficient enforcer” of the antitrust laws – as it must to have standing to sue.
See In re Aluminum Warehousing Antitrust Litig., 833 F.3d 151, 158 (2d Cir. 2016). For
that reason, I respectfully dissent.
To establish antitrust standing, a plaintiff must show (1) an “antitrust
injury,” and (2) “that he is a proper plaintiff in light of four efficient enforcer
factors.” Schwab Short-Term Bond Mkt. Fund v. Lloyds Banking Grp. PLC, 22 F.4th
103, 115 (2021) (alteration adopted and internal quotation marks omitted). The
efficient-enforcer inquiry asks whether a “plaintiff is a proper party to perform the
office of a private attorney general and thereby vindicate the public interest in
antitrust enforcement.” Gelboim v. Bank of Am. Corp., 823 F.3d 759, 780 (2d Cir.
2016) (internal quotation marks omitted). That analysis, in turn, weighs
“(1) whether the violation was a direct or remote cause of the injury; (2) whether
there is an identifiable class of other persons whose self-interest would normally
lead them to sue for the violation; (3) whether the injury was speculative; and
(4) whether there is a risk that other plaintiffs would be entitled to recover

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2
duplicative damages or that damages would be difficult to apportion among
possible victims of the antitrust injury.” Id. at 772 (internal quotation marks
omitted). No single factor is dispositive, and the four factors “need not be given
equal weight: the relative significance of each factor will depend on the
circumstances of the particular case.” IQ Dental Supply, Inc. v. Henry Schein, Inc.,
924 F.3d 57, 65 (2d Cir. 2019) .
While I agree with the majority’s assessment of the second and fourth
factors, I believe those factors are outweighed by serious defects under the first
and third factors given the indirect and speculative nature of DirecTV’s purported
harm. DirecTV first argues that Mission, White Knight, and Nexstar (together,
“Defendants”) colluded to demand higher, anticompetitive retransmission
agreement (“RCA”) fees, and that but for those “supra[-]competitive, price-fixed
demands,” DirecTV would have reached an agreement with both Mission and
White Knight to renew the RCAs. J. App’x at 51–52. According to DirecTV, it then
would have offered subscription packages containing Defendants’ stations to its
customers, thus avoiding the channel blackouts that resulted from the parties’
failure to reach a deal and the cancellations by DirecTV subscribers who were
angered by the blackouts. See id. at 56–57.

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3
But in assessing the directness of an antitrust injury, we follow proximate-
cause principles – not speculative chains of but-for causation. See In re Am. Express
Anti-Steering Rules Antitrust Litig., 19 F.4th 127, 134–35 (2d Cir. 2021). Under the
first-step rule, “injuries that happen at the first step following the harmful
behavior are considered proximately caused by that behavior.” Schwab, 22 F.4th
at 116 (internal quotation marks omitted). There must, however, be “some direct
relation between the injury asserted and the injurious conduct alleged.” Am.
Express, 19 F.4th at 140 (internal quotation marks omitted). It is “not enough” that
a particular plaintiff “suffered a loss in some manner that might conceivably be
traced to the conduct of the defendants.” Schwab, 22 F.4th at 116 (internal
quotation marks omitted). To the contrary, “[d]irectness in the antitrust context
means close in the chain of causation.” Gatt Commc’ns, Inc. v. PMC Assocs., LLC,
711 F.3d 68, 78 (2d Cir. 2013) (internal quotation marks omitted).
The majority insists that DirecTV suffered “a direct injury from the
purported price-fixing conspiracy,” Maj. Op. at 20 (emphasis added), but the
reality is that DirecTV’s harms occurred much further down the causal chain. To
begin, DirecTV acknowledges that it “is a buyer (i.e., a consumer) in the
retransmission consent market,” J. App’x at 78 (quoting Dist. Ct. Doc. No. 60 at

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4
14), rather than a competitor of Defendants. When confronted with the choice of
paying “higher prices” or “los[ing] access to Mission’s and White Knight’s
networks,” DirecTV chose “the lesser of two evils” and “refused Defendants’
[allegedly] supra[-]competitive demands.” Id. at 71 (first quoting Dist. Ct. Doc.
No. 1 ¶ 156, then citing id. ¶ 2). But we have recognized that non-purchasers –
those buyers who did not “buy at higher prices” stemming from collusive price-
fixing, Port Dock & Stone Corp. v. Oldcastle Ne. Inc., 507 F.3d 117, 124 (2d Cir. 2007)
– will struggle to show a direct injury because they “did not pay higher prices by
virtue of the conspiracy,” Gatt, 711 F.3d at 79; see also 2A Phillip E. Areeda &
Herbert Hovenkamp, Antitrust Law: An Analysis of Antitrust Principles and Their
Application ¶ 335c(3) (2014) (“Areeda & Hovenkamp”) (“Beyond the actual
customers, most other plaintiffs would be classified as ‘remote’ and denied
standing.”).
That makes sense. The antitrust laws fashion a remedy for those who “pay
excessive prices”; they do not “provide a remedy in damages for all injuries that
might conceivably be traced to an antitrust violation.” Assoc. Gen. Contractors of
Cal., Inc. v. Cal. St. Council of Carpenters (“AGC”), 459 U.S. 519, 530, 534 (1983)
(emphases added and internal quotation marks omitted). Greenlighting DirecTV’s

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5
attenuated theory of injury therefore undercuts the very foundation of the antitrust
laws.
Other circuits have recognized as much. The Ninth Circuit, for example, has
explained that while buyers who pay supra-competitive prices “ordinarily have
antitrust standing,” those “who are priced out [of] the market – and hence do not
purchase the product or pay the overcharge – ordinarily do not” because their
injuries are “less direct” than those of parties who actually “agree[d] to supra[-
]competitive prices.” City of Oakland v. Oakland Raiders, 20 F.4th 441, 448–49, 459
(9th Cir. 2021). The Tenth Circuit has likewise acknowledged that a price-fixing
conspiracy is “certainly aimed at those who purchase the product at the inflated
price” because their injury is both “more direct and more proximately caused than
those [buyers] who are unable to purchase.” Montreal Trading Ltd. v. Amax Inc.,
661 F.2d 864, 867 (10th Cir. 1981) (internal quotation marks omitted). So too here.
Indeed, “[t]he disconnect between [DirecTV’s] injury” – lost profits – and
“[Defendants’] alleged benefit” underscores “the attenuated nature of the causal
chain.” Schwab, 22 F.4th at 116. For starters, DirecTV does not allege that
Defendants “secured [an] illegal benefit at [DirecTV’s] expense,” Mid-W. Paper
Prods. Co. v. Cont’l Grp., Inc., 596 F.2d 573, 583 (3d Cir. 1979), since DirecTV’s lost

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6
profits “in no way enriched [Defendants],” Schwab, 22 F.4th at 116. To the extent
DirecTV argues that White Knight and Mission drove up the price it would later
pay Nexstar, that purported harm had not been realized when DirecTV filed its
complaint. And we have emphasized that merely “enabling other . . . companies
to raise . . . fees does not establish [a] direct relation between injury and [the
alleged] antitrust violation.” Am. Express, 19 F.4th at 141 (alteration adopted and
internal quotation marks omitted).
Put simply, because there is no “direct connection between the harm and
the alleged antitrust violation,” id. at 143, the first efficient-enforcer factor weighs
against DirecTV’s antitrust standing.
The third efficient enforcer factor – whether the damages are “highly
speculative” – likewise signals that DirecTV is an “inefficient engine of
enforcement.” Gelboim, 823 F.3d at 779. “A leading antitrust treatise,” Apple Inc. v.
Pepper, 587 U.S. 273, 283 (2019), has emphasized that the injuries of those
consumers “who refused to purchase at the cartel price” are innately
“speculative,” since “[a]nyone could claim that he or she would have purchased
at the competitive price but was priced out of the market as a result of the
anticompetitive pricing,” Areeda & Hovenkamp ¶ 391b(1) (emphasis deleted).

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7
That principle applies here. While DirecTV’s damages theory may be
“simple to articulate” – lost profits from the cancellation of subscriptions – it
would be exceedingly “difficult to apply” because it relies on a chain of speculative
assumptions. Schwab, 22 F.4th at 119. First, DirecTV assumes that the parties
would have reached an agreement. But we are left to speculate not only as to
whether the parties would have come to terms, but at what price and when.
Tellingly, the complaint contains no basis for estimating what the terms would
have been had the parties reached a competitive price. See Montreal Trading, 661
F.2d at 868 (“[W]e will remain unsure about many things, including: whether the
purchase would have been made from one of the conspirators or from one of their
competitors; what quantity would have been purchased; what price would have
been paid; and at what price resale would have occurred.”). Indeed, as Defendants
point out, DirecTV has a history of failed RCA negotiations resulting in blackouts
independent of alleged anticompetitive activity. See, e.g., In re Customer Rebates for
Undelivered Video Programming During Blackouts, Notice of Proposed Rulemaking,
MB Doc. No. 24-20, FCC-24-2, ¶ 3 & n.7 (Jan. 17, 2024) (noting “dramatic[]”
increase in number of blackouts).

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8
Second, DirecTV assumes that its subscribers would have stayed with
DirecTV but for Defendants’ supra-competitive prices. But this too involves flights
of speculation. DirecTV’s own complaint acknowledges that DirecTV felt
increasing pressure resulting from “higher subscription prices for [DirecTV’s]
video product.” J. App’x at 29 (quoting Dist. Ct. Doc. No. 1 ¶ 62); see also id. at 23–
24 (complaint emphasizing that “what was once a free product has become an
increasingly costly burden on millions of American households” (quoting Dist. Ct.
Doc. No. 1 ¶ 42)). Moreover, DirecTV’s parent company’s 2020 Form 10-K
indicated that its video business – “primarily DirecTV,” Nexstar Br. at 21 – had
been hemorrhaging customers in recent years, well before the allegedly supra-
competitive pricing demanded by Defendants. See AT&T Inc., 2020 Form 10-K, at
35, 47 (Feb 25, 2021), tinyurl.com/4vy78ptr (AT&T reporting that its video business
lost 1.19 million subscribers in 2018, 3.4 million in 2019, and 2.99 million in 2020).
It is therefore “highly speculative” whether DirecTV customers canceled their
subscriptions due to the specific blackouts identified here or whether those
decisions were based on independent factors like price increases or competition
from streaming services. Schwab, 22 F.4th at 119 (internal quotation marks

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9
omitted); see also AGC, 459 U.S. at 542–43 (disfavoring “highly speculative”
damages claims for efficient-antitrust enforcers).
Moreover, even if some of DirecTV’s customers “followed through on their
threats” and cancelled their subscriptions due to these blackouts, J. App’x at 56–57
(quoting Dist. Ct. Doc. No. 1 ¶ 190), we would still be required to estimate how
many did so to calculate lost profits. DirecTV hypothesizes that “more than ten
thousand subscribers have cancelled their . . . subscription as a result of the
Mission blackout,” id. at 57, and that “nearly three thousand subscribers cancelled
. . . as a result of the White Knight blackout,” id. at 58 (quoting Dist. Ct. Doc. No. 1
¶ 202). But while DirecTV rehashes the messages from angry customers
complaining that “the FOX broadcasting TV station has been off the air since the
World Series and the NFL season,” id. at 56, it does not indicate whether these
customers actually cancelled their subscriptions or offer any formula for
ascertaining the motivations of those who did cancel their subscriptions.
Finally, even if DirecTV had provided a satisfying estimate of how many
subscriber cancellations were attributable to the blackouts, we would still have to
calculate DirecTV’s lost profits. Given the “speculative nature of the harm,” I do
not see how we could do so with the required “reasonable level of certainty.” City

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10
of Oakland, 20 F.4th at 460. Indeed, it is possible that DirecTV’s bottom line
remained unaffected by the temporary blackouts, since the lost revenues from
cancellations may have been offset by cost savings on fees that would otherwise
have been paid to Defendants. All of this makes it “difficult to see how [DirecTV]
would arrive at an estimate [of lost profits], even with the aid of expert testimony.”
Gelboim, 823 F.3d at 779. Bearing in mind that “antitrust discovery can be
expensive” (to say the least), I would demand more “specificity in [DirecTV’s]
pleading before allowing [this] potentially massive factual controversy to
proceed.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 558 (2007) (internal quotation
marks omitted).
Before today, no circuit had held that a priced-out non-purchaser like
DirecTV plausibly alleged antitrust standing. Though the Ninth and Tenth
Circuits have each recognized that a non-purchaser may suffer an antitrust injury
as a legal matter, each declined to find that the plaintiff before it had made the
requisite showing. See City of Oakland, 20 F.4th at 460; Montreal Trading, 661 F.2d
at 867–68. In the words of the Ninth Circuit: “Non[-]purchasers who are priced
out of the market” present a “special problem[] due to the speculative nature of
the harm.” City of Oakland, 20 F.4th at 460; Cf. Simon v. KeySpan Corp., 694 F.3d 196,

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201 (2d Cir. 2012) (“Generally, only direct purchasers have standing to bring civil
antitrust claims.”).
The majority attempts to skirt this problem by pointing to DirecTV’s “prior
course of dealing” with Defendants, which it insists “provides a benchmark for
assessing the effect of the alleged conspiracy.” Maj. Op. at 25; see also DirecTV Br.
at 38. Because other circuits have suggested that “a regular course of dealing with
the conspirators” can make a party’s claimed injuries something other than
“inherently speculative,” Maj. Op. at 25 (quoting Montreal Trading, 661 F.2d at 868),
the majority maintains that DirecTV too is an efficient enforcer.
I am unconvinced. DirecTV’s alleged “longstanding history of reaching
agreements every three years,” DirecTV Br. at 39, is wholly conclusory and
encompasses a few threadbare paragraphs of the complaint, J. App’x at 36–37, 44
(citing Dist. Ct. Doc. No. 1 ¶¶ 90, 95, 126). Indeed, the complaint describes just one
prior dealing between the parties before the breakdown in negotiations in 2022.
See id. at 36. Such allegations, asserting a single set of negotiations, are simply too
sparse to establish a meaningful benchmark for determining the effect of the
alleged conspiracy. At most, the complaint alleges that the fees requested in 2022
“were radically disproportionate to the number of stations owned by White

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Knight and Mission” and “seemed intentionally calculated to prevent the parties
from reaching an agreement.” Id. at 37 (emphasis added) (quoting Dist. Ct. Doc.
No. 1 ¶¶ 97, 99). But neither allegation references the fees paid in 2019; each
merely notes that fees have generally “increased” since the mid-2000s. See id. at
23. And nothing in the complaint suggests what, if anything, changed in 2022.
The third efficient-enforcer factor therefore counsels against finding that DirecTV
has antitrust standing.
* * *
Ultimately, the “key principle underlying th[e efficient-enforcer] test is
proximate cause.” Am. Express, 19 F.4th at 143. Even if the second and fourth
factors weigh in DirecTV’s favor, the indirect nature of the injury and the highly
speculative quality of DirecTV’s damages torpedo the “required direct connection
between the harm and the alleged antitrust violation.” Id. For these reasons, I
remain convinced that DirecTV is an inefficient enforcer, and that it therefore
“lack[s] antitrust standing.” Id. Because the majority concludes otherwise, I
respectfully dissent.

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