Judge in Fubo case against Disney, Fox and Warner Bros. Discovery considers trial to begin in February

The judge who blocked Disney, Fox Corp. and Warner Bros. Discovery from launching streaming service Venu Sports following a lawsuit from Fubo wants the parties to return to court in just over two weeks.

U.S. District Judge Margaret Garnett on Monday issued an order for a preliminary hearing in New York to take place on Sept. 12. (Read her order HERE.) The agenda includes the defendants' pending motion to dismiss the lawsuit, details of the outstanding discovery and the prospect of a jury trial beginning by February 2025. Garnett earlier this month granted Fubo's motion for a preliminary injunction barring the launch of Venu; the overarching antitrust complaint is still pending.

Meanwhile, Disney, Fox and WBD have filed a motion for expedited trial in the U.S. Court of Appeals for the Second Circuit. (Read it HERE.) They claim that “time is of the essence” and that Garnett's decision contains “multiple legal errors” that must be corrected. Members of the Venu joint venture “will lose tens of millions of dollars invested in a start-up company whose entry into the market has been blocked, dozens of employees hired for Venu will be left in limbo, and consumers will be denied access to the innovative new product that Venu would have provided and the increased competition that would result from a new product offering,” according to the motion filed last Friday.

Since the joint venture was formed last February, the companies have spent $74 million to prepare Venu for launch, according to the filing. That figure includes personnel and technology costs, but excludes research and analytics expenses, legal fees and other corporate expenses.

Fubo responded Monday with a motion saying it would not oppose an expedited hearing on appeal, but the company also pointed to “numerous false statements, unsupported factual allegations and misinterpretations of the district court's decision” by its opponents.

Despite claims of huge financial losses and limbo-struck employees, Fubo claims the media companies have presented “zero” evidence or testimony to support such downside risks. Disney, Fox and WBD's “hyperventilation” “over the district court's careful, well-considered 69-page opinion is also misguided,” Fubo's motion continues. “The district court's decision is based on Second Circuit precedent, a full review of the facts presented by both sides, and numerous credibility findings that should be respected.” In addition, the motion continues, the district court relied largely on “defendants' own documents and testimony” in making its decision.

The ruling in Fubo's favor sent shockwaves through the media world, as live sports and streaming play an increasingly larger role across the ecosystem, and the case is David versus Goliath. Although Fubo now has nearly 1.5 million subscribers, it is far below the scale of leading internet pay-TV providers YouTube TV and Disney's Hulu + Live TV. If Fubo succeeds in court, the economic model of TV distribution that has been established for decades could undergo a major overhaul.

For WBD, the Aug. 16 ruling extended a summer low after the company lost the NBA rights (though it filed a last-minute lawsuit against the league asserting its right to outbid Amazon's bid for a gaming package). Venu's failure would destroy a potential lifeline for networks like TNT and TBS, which face major challenges maintaining their distribution. In its most recent quarterly report, WBD cited the NBA loss as the reason for a $9.1 billion writedown on the value of its cable networks.