GfK Wins Second Circuit Affirmance of Dismissal of Antitrust Litigation

Cleary Gottlieb won a ruling in the Second Circuit Court of Appeals affirming the dismissal of antitrust claims brought by Affinity LLC against GfK Mediamark Research & Intelligence, LLC, a subsidiary of one of the largest market research organizations in the world.

GfK has long analyzed magazine readership trends for consumer marketing purposes, publishing its work biannually in its well-known Survey of the American Consumer, and conducting more specific studies on the effectiveness of particular advertisements. More recently, GfK combined its readership and advertisement effectiveness studies in a single product known as AdMeasure. In its lawsuit, Affinity charged that GfK violated the federal antitrust laws by engaging in a predatory pricing campaign that put Affinity out of business and impermissibly monopolizing the markets for magazine readership and advertisement effectiveness research products.

In its ruling affirming the district court’s dismissal, the Second Circuit held that Affinity failed to plead predatory pricing, monopolization, or attempted monopolization, finding among other things that Affinity had not alleged anticompetitive conduct, such as below-cost pricing, misappropriation of confidential information, or product disparagement. The Court separately noted that Affinity did not plead facts supporting the inference that GfK achieved its market power through misconduct rather than as a consequence of a superior product.