Live Nation – After a chaotic week following the Justice Department’s mid-trial settlement with Ticketmaster, the antitrust litigation began surprisingly smoothly on Monday — this time, with dozens of states leading the case.
This is not the outcome the state originally wanted. Out of concerns about being able to handle the case effectively and fearing that the jury would be prejudiced by the change, he requested a mistrial, which would have restarted the court battle at an unknown future date. But an irritated Judge Arun Subramanian was likely to deny the request, and once the states figured out how to retain the DOJ’s expert witness and were able to quickly appoint one, he withdrew his mistrial motion. After new faces were introduced, the trial largely picked up where it left off more than a week earlier, including testimony on how Live Nation had deployed its “velvet hammer” against rivals.
Subramaniam welcomed the jurors back from their “spring break” and asked if they had read or watched any news about the case while they were out, which is prohibited according to jury instructions. They either nodded or remained silent. He reminded jurors that the US has settled its claims, as have some states, but the rest are pending litigation. Jurors should not draw any conclusions from the fact that those parties are no longer in the case, he said.
With the DOJ out of the picture, the lawyers who interrogated the initial witnesses left, replaced by a new team co-led by Jonathan Hatch, an attorney in the New York AG’s office, and Jeffrey Kessler of Winston & Strawn, who had represented college athletes in the landmark Supreme Court antitrust case against the NCAA over compensation.
State attorneys questioned Jay Marciano, COO of Live Nation competitor AEG, on several fronts. While Hatch refreshed jurors on parts of Marciano’s prior testimony, it was otherwise a fairly standard examination. Marciano testified about the ticketing model he prefers in Europe, where multiple ticketing services often operate at one venue, as opposed to the US standard where venues often accept exclusive ticketing contracts from Ticketmaster.
On cross-examination, Marciano talked about an incident the jury had heard about early in the trial: a call between the then-CEO of Barclays Center and Live Nation CEO Michael Rapino, who responded to Ticketmaster’s attempt to quit by saying it would be hard to get concerts to the arena with the new UBS Arena nearby. While Barclays interpreted this as a threat to Ticketmaster’s security, Marciano confirmed that as a concert promoter it is common practice to play venues against each other to obtain more favorable terms, and UBS Arena was likely would like Attracting artists away from Barclays as a new venue in the city.
Live Nation’s president of U.S. concerts, Robert Roux, addressed a different allegation: Live Nation uses its extensive control over American amphitheaters to maintain its monopoly power, leaving no other real options for artists wishing to play large outdoor venues. Through Live Nation’s own business presentations, plaintiff attorney Josh Hafenbrack demonstrated that the company has made huge strides between 2016 and now to gain power over four of the top five amphitheaters in the US in terms of ticket sales. The 2018 presentation featured a richly highlighted list of the top 100 amps worldwide, with green highlights representing the 62 Live Nation owned, operated or exclusively booked venues at the time. Since then, Roux confirmed, the company has added several more to that list.
Live Nation denies that it has taken anti-competitive actions, and argues that states ignore other types of venues competing for the same shows. But Roux wrote in a 2015 email that many non-superstar artists wish to play the amphitheatre—many of which, evidence shown in court shows, are controlled or exclusively booked by Live Nation. He also wrote that in those cases, “there was room for hard negotiations and deals.”
“Either we are together or we are competitors”
Other emails explain how Live Nation thinks about its competition when considering attractive deals. In a 2018 email exchange, Rapinoe questioned why Live Nation should give the show to a promoter in the south, Red Mountain Entertainment, before it actually owned it. Roux wrote at the time that the message to Red Mountain should be, “Either we are together or we are competitors.” He described this approach as a “velvet hammer”. On the witness stand, Roux said the message was not to “antagonize” the promoter, but to be firm and send a clear message. In a separate exchange mentioning Red Mountain, Roux wrote that Live Nation should not be “complacent” and “let the little guys encroach from the edges.” Roux said the comment was general and not specific to the promoter. Live Nation acquired Red Mountain in 2018.
In 2020, Rapinoe advised the Rocks not to let Radio Disney and concert promoter Superfly into the Live Nation venue, even though they had offered a contract that would make Live Nation at least $400,000 to rent the amp. One executive expressed concern about allowing third-party promoters into the amp, even though “the money is very good.”
Finally, Roux testified that Live Nation’s profits per fan have increased severalfold in recent years, with profitability in large amps, in this case a key market, growing more than other venue categories between 2019 and 2024. Before including some costs, the company expects to make $386 million in profit from big amps in 2024, nearly three times what that segment made in 2019.
Other than a delay in the case, as the states’ team sorted out their next moves in the DOJ’s absence, there were no notable changes to the flow of the trial and the way new plaintiffs were handled, compared to the first week of the trial. The case is still expected to last several weeks, although both sides said they have worked to trim their witness lists to make up for lost time. Later this week, one of the trial’s most high-profile witnesses is expected to take the stand: the CEO of Live Nation.
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