Antitrust Law Daily Wrap Up, ANTITRUST—2d Cir.: Preliminary injunction against Nielsen upheld in Cumulus radio ratings antitrust litigation, (Jul 14, 2026)

By Kenneth H. Ryesky, M.B.A., J.D.

"Safe harbor" specification in injunction of what was "presumptively reasonable" gave sufficient clarity to restraint from charging "commercially unreasonable rate" during pendency of litigation.

On an interlocutory appeal, the Second Circuit has affirmed a federal district court's grant of a preliminary injunction upon media audience rater Nielsen during the pendency of the litigation brought against it by Cumulus. Cumulus had sued, arguing that Nielsen’s new policy prohibiting audio networks like Cumulus from purchasing Nielsen’s national data report unless they also agree to purchase Nielsen’s local data products in all markets in which they operate is an anticompetitive tying arrangement in violation of the Sherman Act. The district court agreed with Cumulus and granted preliminary relief. The appeals court found that the district court had not abused its discretion in granting the injunction (Cumulus Media New Holdings Inc. v. The Nielsen Co. (US), LLC, No. 26-88 (2d Cir. Jul. 13, 2026)).

Background. Radio broadcasters (and television broadcasters) derive their business revenues principally if not totally from businesses and other entities who pay for broadcast time in which to deliver their advertising messages to the listening audience. Knowledge of the audience is critical to both broadcaster and advertiser alike in determining the price for the broadcast time slots.

Nielsen Company (US) LLC (Nielsen) is a leading player in the media audience measurement business, including radio broadcast station audiences. For the US national radio station market, Nielsen is the sole entity in the market, having attained its monopoly position through its pioneering work in the industry. For the individual local radio broadcast markets, however, Nielsen does have.

While still a major entity in the individual local radio broadcast markets (in which it necessarily operates as the national monopolist), Nielsen does have competition on the local level. One such local radio audience measurement competitor in some US markets is Eastlan Ratings (Eastlan).

Cumulus Media New Holdings, Inc. (Cumulus) is a large US audio media industry player, operating nearly 400 individual stations and also a network by which it supplies programming to approximately 9,500 other stations.with nearly 10 thousand local broadcast station network affiliates (including nearly 400 it directly operates. For many years, Cumulus had purchased Nielsen's national data and also selectively purchased Nielsen's local data for some of its broadcast stations. In 2024, however, Nielsen instituted a new policy, whereby customers who purchased its national data and also wished to purchase local market audience data were required to purchase the local data from Nielsen, else the national data supplied would not factor in Nielsen's data for localities where the customer operates.

This new policy complicated negotiations when Cumulus sought to renew its subscriptions with Nielsen. Cumulus sued Nielsen in federal district court, alleging illegal tying and other anticompetitive practices; the district court issued a preliminary injunction barring Nielsen from enforcing its new pricing policy against Cumulus during the pendency of the litigation. Nielsen filed an interlocutory appeal to the Second Circuit, seeking to overturn the injunction. Shortly thereafter, Cumulus filed for voluntary Chapter 11 bankruptcy in the bankruptcy court. The Second Circuit then ruled on Nielsen's interlocutory appeal.

Bankruptcy-automatic stay. The circuit court panel ruled that the automatic stay accompanying a bankruptcy filing [11 U.S.C. § 362(a)(1)] did not apply to Nielsen's counterclaims against Cumulus (there being no question that Cumulus's own claims in its complaint need not be stayed). The automatic stay statute pertains to claims against the debtor. The panel noted that while the district court would have discretion for various reasons to stay the entire case pending the bankruptcy proceedings, such had not as yet occurred. The litigation could thus continue as to Cumulus's own allegations.

Preliminary injunction-entitlement. The circuit panel found that Cumulus was entitled to the preliminary injunction. Here, the preliminary injunction granted by the district court had altered the status quo, thereby setting a higher bar for Cumulus to clear in showing "a clear or substantial likelihood of success on the merits" and strongly showing irreparable harm.

Cumulus sufficiently showed that the purchase of the local data was tied by Nielsen to the purchase of its national data. The national data actually delivered under Nielsen's newly-instituted policy was comparable to "Swiss cheese," such that there were "holes" where the data for the local stations was missing; this would make the national data largely useless to Cumulus in setting its advertising rates for the individual broadcast stations it operates. During the failed negotiations, Nielsen offered Cumulus a "standalone price" for the nationwide data at a rate so exorbitant that it effectively amounted to coercion.

The circuit court panel agreed with the district court's finding that Nielsen's new policy had anticompetitive effects, including imposing barriers to Eastlan and other audience measurement firms from entering the local markets. Nielsen's asserted procompetitive justification that it attempted to recoup its costs in the face of decreasing revenues was not adequately supported, and the district court did not clearly err when it found that Nielsen's arguments here were pretextual.

Preliminary injunction-irreparable harm. The circuit court ruled that Cumulus had made a strong showing of irreparable harm. Although financial loss standing alone does not necessarily constitute irreparable harm, the circuit panel applied the standard that "irreparable harm is that where, but for the grant of equitable relief, there is a substantial chance that upon final resolution of the action the parties cannot be returned to the positions they previously occupied." Here, Cumulus convincingly showed that absent the preliminary injunction, it would lose its ability to develop credible advertising proposals and thus be deserted by long-standing customers. Upon final resolution of the dispute with Nielsen, Cumulus would be highly unlikely to return to its position before the dispute arose if such were to occur.

Preliminary injunction-propriety. The circuit court panel found that the preliminary injunction as granted in this particular instance was proper. The district court properly concluded that enforcement of the antitrust laws is in the public interest. Moreover, in enjoining Nielsen from charging Cumulus a "commercially unreasonable rate" during the pendency of the litigation, the injunction specified that "For purposes of this Order, a rate that is equal to or lower than the highest annual 2026 rate Nielsen charges any broadcaster (whether network or local) for [Cumulus's network affiliates] is presumptively reasonable." This specification made the injunction's terms sufficiently ascertainable to facilitate Nielsen's compliance.

The Case is No. 26-88.

Judge: Katzmann, R.

Attorneys: Jennifer Fleury (Hogan Lovells Cadwalader US LLP) for Cumulus Media New Holdings Inc. Jefferson E. Bell (Gibson, Dunn & Crutcher LLP) for The Nielsen Co. [US], LLC.

Companies: Cumulus Media New Holdings Inc.; The Nielsen Co. [US], LLC

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