Cleary Gottlieb represented SKY Italia S.r.l., the Italian pay-TV platform, against anti-competition claims filed in court by Jepssen S.p.A., a decoder producer. SKY implemented a €150 million NDS technology swap to ensure its signal is available only to its subscribers, thereby ending pay-TV piracy in Italy. Jepssen requested an interim order from the Court of Appeals of Rome to prevent the swap. The appellate court rejected Jepssen’s request.
Jepssen claimed the swap violated competition law as it excluded non-NDS decoder producers like Jepssen from the market. For this reason, Jepssen asked the Court to stop the swap. After hearing the parties’ oral arguments on January 14, 2005, the Court agreed that a pay-TV operator does not compete with decoder producers and, therefore, its decision to adopt a safer encryption technology does not trigger an abuse of dominant position, thus enabling SKY to complete the swap.