Search Articles
MANHATTAN (CN) — A New York federal judge signaled on Wednesday that he is likely to order the Justice Department to revise and replead its concert venue monopoly claims against Ticketmaster and parent company Live Nation Entertainment concerning a longstanding policy obligating artists playing the company’s large amphitheaters to contract with Live Nation to serve as their artists’ concert promoter.
U.S. District Judge Arun Subramanian, the Manhattan federal judge overseeing the civil antitrust case seeking to break up Ticketmaster and Live Nation’s multipronged dominance in the live entertainment industry, questioned on Wednesday whether their refusal to rent Live Nation-owned amphitheaters to rival promoters violated antitrust laws prohibiting “tying,” or was, in fact, a protected refusal-to-deal claim under precedent of the Supreme Court’s 2004 ruling in Verizon v. Law Offices of Curtis V. Trinko LLP.
Live Nation relied on the Trinko doctrine in its motion to dismiss the antitrust suit, arguing that the purported “tying” claims are actually identical to protected business practices covered by settled law that provides that Live Nation has no duty to aid its competitors.
“Tying is the forced imposition of a second product on a single buyer who would prefer to buy the first standing alone,” the company wrote in support of its motion to dismiss. “Here, the buyers of the two supposedly tied products are different actors: Promoters are the ones who rent amphitheaters from Live Nation, and performing artists are the ones who hire promoters.”
During oral arguments on Wednesday, Latham & Watkins attorney Andrew Gass said the federal and state plaintiffs mischaracterized how the competition in the live entertainment business actually works.
Subramanian, a Biden appointee, pressed the federal prosecutors to explain how the antitrust “tying” claims were “something besides the refusal to deal with rival promoters.”
Department of Justice lawyer Arianna Markell disagreed that the antitrust tying claims would be entirely precluded by Trinko refusal-to-deal defense and instead were plausibly supported by the Second Circuit’s ruling in Eastman Kodak Co. v. Henry Bath LLC, which defined “tying” as an agreement by a party to sell one product but only on the condition that the buyer also purchases a different (or tied) product.
“The crux of defendants’ motion is not a legal question so much as a factual argument (which is improper for a motion to dismiss) that promoters , rather than* artists* , are the consumers of amphitheater access,” the state and federal prosecutors wrote in a court filing opposing the motion to dismiss.
The judge did not immediately rule on Live Nation’s motion to dismiss at the conclusion of a nearly two-hour oral arguments hearing Wednesday, and instead asked the parties to submit additional letters by next Monday before he will rule on the motion to dismiss certain antitrust claims, and whether to dismiss those claims with or without prejudice to refile a complaint.
He promised to “promptly rule on the motion” in order to give the parties time to tailor their respective discovery motions based on the court’s ruling.
The Justice Department, along with 30 state and district attorneys general, filed a civil antitrust lawsuit against Live Nation Entertainment in May 2024, accusing them of wielding monopolistic control as contemporary gatekeeper for the presentation of nearly all major live concerts in America, including through Ticketmaster’s long-term deals with venues, and Live Nation’s monopoly on primary-ticketing markets, large amphitheaters and concert promotion for both venues and artist.
The sprawling 124-page antitrust complaint accuses the company of Sherman Act violations and seeks a remedy of “structural relief” that would separate the entities making up Live Nation and Ticketmaster’s monopoly across the concert industry in the United States.
Live Nation controls at least 80% of primary ticketing at major concert venues and maintains a 70% market share in large amphitheater promotions. It has become the largest promoter of national amphitheater tours, reaping billions of dollars in additional fees forced onto ticket buyers, the feds argued in the complaint.
Follow @jruss_jrussSubscribe to our free newsletters
Our weekly newsletter Closing Arguments offers the latest about ongoing trials, major litigation and rulings in courthouses around the U.S. and the world, while the monthly Under the Lights dishes the legal dirt from Hollywood, sports, Big Tech and the arts.