The big Live Nation antitrust trial may be over, but the live music company’s lawyers are keeping busy. Not least because they are still trying to get an expert witness testimony from that case struck down, and with it the jury decision ordering Live Nation to pay hundreds of millions of dollars in damages.
Meanwhile, in Washington DC, they’ve just agreed a $9.9 million settlement in an entirely separate dispute that centred not on allegations that Live Nation is an unlawful monopoly, but that it employs dodgy tactics when selling tickets via its Ticketmaster platform.
That case was pursued by DC’s top legal officer, Attorney General Brian L Schwalb, who says, “For at least a decade, Live Nation and Ticketmaster boosted profits by charging predatory, hidden fees”. Which meant they were “taking advantage of DC residents buying tickets for their favourite artist or team”, while also “pricing others out entirely”.
The specific complaints made by Schwalb’s team against Ticketmaster have been common gripes with ticketing more generally over the years: that mandatory booking fees were not declared upfront, and the nature and purpose of add-on fees were not properly explained.
Ticketmaster was also criticised for having a countdown clock and pop-up notifications heavily implying ticket availability was running low to pressure customers to make quick buying decisions.
As well as handing over $9.9 million, most of which will be paid through to affected ticket buyers, Live Nation has also changed aspects of the way it sells tickets. It is already declaring mandatory fees upfront as a result of US-wide action taken by the Federal Trade Commission. As a result of the investigation in DC, it will also share additional information about the fees it charges and its ‘ticket hold timer’.
Schwalb continues, “With this settlement, we’re putting millions of dollars back into the pockets of DC fans and ensuring that the price fans see when they first start shopping for tickets is the price they actually pay”.
Back in New York, where Schwalb and the Attorneys General from 33 US states successfully pursued their antitrust case against Live Nation, the live giant's lawyers are still moaning about the testimony of economist Rosa Abrantes-Metz.
During the trial, she estimated what impact Live Nation’s unlawful monopoly had on the fees consumers paid when buying tickets via Ticketmaster. That involved identifying what part of the fee is retained by Ticketmaster - because the fees are shared with venues - and then comparing that with AXS, the ticketing platform of Live Nation’s main competitor AEG.
Based on that, she concluded that customers were paying between $1.56 and $1.72 more per ticket as a result of Live Nation’s anticompetitive conduct. After deciding that Live Nation was indeed an unlawful monopoly, the jury last week employed Abrantes-Metz’s maths in working out the impact of that monopoly on consumers.
The total amount of damages Live Nation will have to pay is still to be calculated, but the starting point is that all tickets covered by the ruling were $1.72 more expensive than they should have been. It seems likely that the damages bill will ultimately run into at least the hundreds of millions.
Live Nation's attorneys weren’t happy with Abrantes-Metz's testimony from the start and asked the judge to strike it down, which would mean the jury wouldn’t be allowed to consider what the economist had said.
One of Live Nation’s motions to dismiss Abrantes-Metz’s testimony is still going being considered in the New York court where the trial was fought out, with the judge having set a timeline for reviewing the live music company’s arguments against the economist’s approach.
But in a letter on Friday, Live Nation said that the judge should now dismiss Abrantes-Metz’s testimony at the “earliest convenience”. And, because the jury clearly used Abrantes-Metz’s maths when ruling on damages, that part of the jury’s decision should also be speedily set aside.
“It is now clear that the jury based its damages award (and possibly its finding of antitrust injury) on Dr Abrantes-Metz’s flawed analysis and her analysis alone”, the letter stated, before reminding the judge that Live Nation has “repeatedly objected to Dr Abrantes-Metz’s testimony”.
“Despite the multiple, severe problems with the Abrantes-Metz analysis, the jury returned a verdict awarding the maximum amount of damages in the range Dr Abrantes-Metz offered”, it continued. “Such an award should not have happened and the court should set aside the jury’s damages verdict as a result”.
Legal reps for the 33 states that pursued the case against Live Nation have responded, noting the judge has already set a plan for further briefings and discussions about Abrantes-Metz’s testimony.
Those briefings and discussions are necessary, they reckon, and there is no reason to drop that plan now in order to bring about a speedier resolution. And in proposing that that should happen, they added in their own letter, Live Nation’s lawyers are “simply ignoring the court’s instructions”.