What You Need to Know
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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.
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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.
On July 13, 2026, the U.S. Court of Appeals for the 2nd Circuit affirmed a preliminary injunction against Nielsen, handing Cumulus Media a significant win in a constructive tying case with implications beyond the radio ratings industry. Cumulus Media New Holdings Inc. v. The Nielsen Co. (US), LLC, No. 26-88 (2d Cir. Jul. 13, 2026).
Background
Nielsen is the leading provider of national radio audience measurement data in the United States and a dominant, though not the sole, provider of data at the local market level. In 2024, Nielsen instituted a policy barring national radio broadcasters that also operate local stations from purchasing its national report unless they also purchase Nielsen’s local data in every market where they operate. Cumulus alleged that customers who decline to buy the local data received a downgraded version of the national report riddled with geographic gaps that rendered it effectively useless for setting advertising rates. Cumulus alleged that Nielsen charged a prohibitively expensive standalone price for the full national data, which Cumulus characterized as functional coercion to buy the local data in order to obtain the national report.
Cumulus sued in October 2025, alleging illegal tying under the Sherman Act. The U.S. District Court for the Southern District of New York granted a preliminary injunction following a three-day evidentiary hearing. Nielsen appealed, and shortly thereafter, Cumulus filed for voluntary Chapter 11 bankruptcy.
The Second Circuit's Ruling
The panel affirmed on three principal grounds:
Constructive Tying: The panel 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. The panel cited internal Nielsen communications in which a Nielsen executive described the policy as designed to “command subscriptions in local markets” and “prevent networks from getting data through the back door.” The panel also found that Nielsen’s proffered procompetitive justification, focused on cost recovery amid declining revenues, was pretextual and inadequately supported.
Irreparable Harm: The panel found Cumulus made a strong showing that, absent the injunction, it would lose its ability to develop credible advertising proposals and forfeit longstanding customer relationships — harm that was unlikely to be undone by a final judgment. The panel did clarify, however, that generalized harm to consumers and competition does not automatically constitute irreparable harm in private litigation, even where such concerns might support a preliminary injunction in a government enforcement action.
Specificity of the Injunction: 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.
Regard to Cumulus’s bankruptcy, the panel held that the automatic stay under 11 U.S.C. § 362(a)(1) applying to litigation against Cumulus did not prevent Cumulus' own offensive claims from proceeding.
Implications for Data and Subscription Businesses
The ruling's holding is industry-agnostic and should remain top of mind for companies that sell proprietary data, analytics, or subscription products:
- Constructive tying is a real antitrust risk: Liability can arise from a pricing structure alone, without any express contractual tie. A price differential that leaves the buyer with only one economically rational choice may be enough.
- Compliance reviews must go beyond written contracts. Negotiation dynamics, pricing history, and internal communications are all fair game. Language suggesting a policy is designed to coerce purchases or foreclose competitors will be closely scrutinized.
- Bundled pricing must be justifiable. Companies charging materially more for a standalone product than a bundle should be prepared to both articulate and substantiate a legitimate procompetitive rationale for the difference.
- A warning, but not a prohibition. The court did not condemn bundled pricing as a whole. Companies retain the right to offer bundled pricing that does not fit the tying framework at issue in this case. Those facing litigation can also raise defenses, including the degree of market power at issue and the procompetitive benefits. The panel's treatment of irreparable harm also gives defendants a useful argument in resisting preliminary injunctions in private antitrust litigation.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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