Second Circuit Affirms Preliminary Injunction Against Nielsen In Constructive Tying Case

What You Need to Know

• Key takeaway #1

  The U.S. Court of Appeals for the 2nd Circuit confirmed that tying does not need to appear in a written contract. Where a seller with substantial market power prices the standalone product so far above the bundled offering that the buyer is left with no economically rational alternative, that pricing differential alone can constitute an illegal constructive tie under the Sherman Act.

• Key takeaway #2

  The panel rejected Nielsen's argument that the injunction was impermissibly vague because it regulated pricing. Instead, the panel found that the injunction's safe harbor, which specifies that a rate equal to or lower than the highest annual 2026 rate Nielsen charges any comparable broadcaster, is “presumptively reasonable,” and gave Nielsen sufficiently clear guidance for compliance.