Live Nation has launched its first formal rebuttal against the US government’s antitrust lawsuit, which accuses the live giant of anticompetitive conduct and aims to force a sale of its Ticketmaster business. In a letter to the court, the live giant’s legal team highlighted a number of technical defences, noting that the judge overseeing the case recently invited them to identify key issues that will form part of a future motion for dismissal.
We’ve already had some arguments from Live Nation’s public affairs team against allegations made by the US government’s Department Of Justice, including that the company’s net profits do not suggest monopoly power, that the live events market is more competitive than ever, and nothing proposed by the government department will reduce ticket prices. The lawyers, however, have honed in on legal technicalities rather than big bold statements.
They say the government accuses Live Nation of creating an “unlawful tying arrangement” between its amphitheater venues and concert promotions business. However, any exclusivity arrangements between the company’s venues and promoters are actually protected, rather than forbidden, by US federal competition law, aka antitrust law. Meanwhile allegations Live Nation has violated state-level laws lack detail and, in some cases, have been made too late.
A tying arrangement, according to the Legal Information Institute, is “an agreement in which the seller conditions the sale of one product (the ‘tying’ product) on the buyer’s agreement to purchase a separate product (the ‘tied; product)”. Tying arrangements are not necessarily unlawful, but can be if they are used to augment market power or impair competition.
According to the lawyers, the DoJ claims that Live Nation ties access to the amphitheater venues it operates (the tying product) to the provision of its concert promotion services (the tied product), whenever Live Nation doesn’t allow other promoters to stage shows in its venues.
However, what the government is really describing, the lawyers argue, is a ‘refusal to deal’, whereby “Live Nation refuses to rent its amphitheaters to other promoters”, and in doing so secures “a competitive advantage in the promotions market”.
This conduct, they argue, is entirely legal. Citing legal precedent, they say that US federal law “does not restrict the long recognised right” of a company “to freely exercise its own independent discretion as to parties with whom it will deal”.
The second part of the legal letter deals with state-level laws. When the US government filed its lawsuit against Live Nation it was accompanied by claims from 30 state-level attorneys general, 22 of which accused Live Nation of violating state laws as well as federal law.
However, say Live Nation’s lawyers, “these claims are threadbare and conclusory”. They simply incorporate all the allegations made in the main complaint and then “cite the state laws defendants supposedly violated and request relief”.
They “do not allege the elements of each state-law claim and they do not say what conduct allegedly violates the state laws in question”. So, basically, “the present articulation of the state-law claims is deficient as a matter of law”.
Some of the state-level claims should also be dismissed under the statute of limitations, the legal letter also argues. Conduct complained about in the legal filing includes the 2010 merger of Live Nation and Ticketmaster, other acquisitions in 2016 and 2017, and correspondence between Live Nation and rival venue operator Oak View Group in 2016.
However, with the state-level laws Live Nation is accused of violating, the longest statute of limitations is six years, meaning all those claims are time-barred.
The US Department Of Justice and state attorneys general are yet to respond to this week’s letter. But it seems certain that we can expect plenty more legal technicalities to be raised as this dispute goes through the motions.