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

The Nielsen Company (US), LLC offered its radioratings products to Cumulus Media New Holdings Inc. both bundled at a discount and on a standalone basis, at prices no one contends were below cost. The Second Circuit nonetheless held that the standalone offer was likely an unlawful “constructive tie” under Section 2 of the Sherman Act because the price was so “exorbitant” that Cumulus had “no choice” but to take the bundle. The court then affirmed a preliminary injunction barring Nielsen from charging a “commercially unreasonable rate.” The question presented is: Whether a seller who offers its products separately and in a bundle, at prices never alleged to be below cost, may be held liable under Section 2 of the Sherman Act for a “constructive tie” because a court deems a standalone price too high relative to a discounted bundle.