The US judge overseeing the big antitrust lawsuit against Live Nation says the company’s attempt to delay the case from going to trial next week is likely to be denied.
Judge Arun Subramanian’s comments in court - in which he said he was “inclined” to deny the live giant’s request to push back the trial start date - follows a submission by the US Department Of Justice, the government department that brought the lawsuit alongside attorneys general for 40 US states. In it, DoJ lawyers branded Live Nation’s request a “desperate plea” and a “meritless attempt to delay trial”.
Both lawyers and lobbyists working for Live Nation have been very busy indeed trying to stop this legal battle from getting to trial, with the company’s lawyers trying to get the case dismissed, while its lobbyists are urging the DoJ to settle the matter out of court.
Even if Live Nation is as confident as it claims about being able to ultimately win this legal battle in court, it presumably doesn’t want too much public scrutiny of its operations in a courtroom.
After all, even if its dealings with artists and venues turn out to be entirely lawful, they could still prove to be controversial, and having the specifics of those deals in the spotlight will provide ammunition for critics of Live Nation within the music industry and beyond.
Another discussion in court this week considered quite what those critics are - and are not - allowed to discuss if and when they appear on the witness stand.
Earlier this month, Judge Subramanian declined to dismiss the DoJ’s legal action which accuses Live Nation and its Ticketmaster subsidiary of anticompetitive conduct. He did, however, trim the scope of the lawsuit, removing some of the legal claims made against the live music company.
Despite Live Nation CFO Joe Berchtold calling the trimming of the lawsuit a “pleasant surprise” on an investor call last week, the company’s lawyers - unsurprisingly - say Subramanian should not be letting any of the DoJ’s claims proceed to trial. And to that end they want to be allowed to appeal Subramanian’s recent ruling and have next week’s start of the trial pushed back while that happens.
However, the relevant laws set the bar for appealing Subramanian’s initial ruling at this stage in the proceedings very high indeed. And in a strongly worded court submission earlier this week, the DoJ argued that Live Nation has “not come close to showing the extraordinary circumstances that are required” for an appeal to proceed and even failed “to note the extremely high threshold for such appeals”.
Nor, says the DoJ, has Live Nation acknowledged that a relevant piece of legislation - the US Expediting Act - “expressly precludes” appeals of this kind in “antitrust enforcement actions such as this one”.
The DoJ’s latest filing with the court, pushing back against Live Nation’s attempt to delay things, suggests that the government’s lawyers are ready and raring to go, and keen to pursue this case in court rather than settling or delaying the matter. For now at least.
The boss of the department’s antitrust team Gail Slater was recently pushed out of her job. A move that was widely assumed to be - in part, at least - the result of Live Nation’s lobbyists hiring what one of Slater’s former colleagues described as a “bevy of cozy MAGA friends” who are close to Donald Trump, in order to put pressure on overall DoJ boss Pam Bondi to get rid of Slater and force a settlement deal.
Live Nation has been increasingly vocal and public in its demands that the government settle of late, with its EVP of Corporate And Regulatory Affairs Dan Wall writing a bombastic article, published in the Live Nation investor portal, that made the bold claims that “cases in this posture nearly always settle” and that Live Nation was now “ready to make happen”. That article was subsequently and rapidly deleted.
But for now at least, the DoJ seems prepared to join the state-level attorneys general in court to fight this fight, assuming Subramanian does indeed refuse to allow Live Nation to appeal his recent ruling and delay the proceedings. We should know about that for certain in the next few days.
Assuming the trial does begin, it looks likely that there will be some restrictions on what Live Nation’s critics can say in court. In a pre-trial conference yesterday, Subramanian set some limitations for the DoJ’s lawyers when bringing in venue owners who will testify about their fears that Live Nation’s promotions business will punish them if they move their ticketing away from Ticketmaster.
Those venues owners can only discuss their specific fears, the judge said, and must not get distracted talking about “generalised industry fears”.
Nevertheless, even with those restrictions in place, the trial could still provide a lot of insights about the behind the scenes operations of the world’s biggest live music company. If - and that’s still perhaps a big ‘if’ - said trial actually does happen.