Live Nation has made a forthright court filing in its antitrust legal battle with the US government, saying that the case should be thrown out because the US Department Of Justice has no evidence of anticompetitive behaviour, and is simply relying on “gerrymandered” stats about the live giant’s market share.
Given Live Nation is accused of “systematic and intentional” anticompetitive conduct across “virtually every aspect of the live music ecosystem”, the DoJ should have amassed “mountains of evidence demonstrating monopoly power and the anticompetitive effects of Live Nation’s conduct”, say the company’s lawyers. And yet, so far, the government has “barely a molehill”.
The lawsuit, which is being pursued by the DoJ and 40 state-level Attorneys General, accuses Live Nation of anticompetitive conduct and violation of US antitrust laws. When it filed its legal action in May 2024, the DoJ declared that “one monopolist” - Live Nation - “serves as the gatekeeper for the delivery of nearly all live music in America today”, and that the company’s total dominance of the market is “to the detriment of fans, artists, venues and competition”.
The legal action was instigated when Joe Biden was President and ultimately seeks to reverse the 2010 merger of the Live Nation venues and concerts business with Ticketmaster. Some speculated that Donald Trump’s White House would quietly drop the case, but the litigation has gone ahead, despite what many see as the cosy relationship between Trump and big business.
In a move that surprised many industry commentators, Trump has actually increased the scrutiny of Live Nation by ordering government agencies to investigate the ticketing sector. This prompted a second lawsuit filed by the Federal Trade Commission which accuses Ticketmaster of colluding with ticket touts - a claim that the live giant calls “nonsensical”.
As for the DoJ’s antitrust case, Live Nation’s new filing says that the government department has failed to present any evidence of “high pricing or output restrictions” which would back up its bold monopoly claims. So instead DoJ lawyers are “seeking inferences of monopoly power from market shares”.
Market share stats do have a role to play in competition law proceedings, of course, and Live Nation concedes that point in its new filing. But only, it says, “if the relevant markets are properly defined”.
It then accuses the DoJ of “gerrymandering” the relevant markets in “obvious and legally indefensible ways”. So, basically, the DoJ is deliberately defining relevant markets in a way that it knows will give Live Nation a very high market share, while excluding aspects of the market that would decrease that share.
For the purposes of its legal action, Live Nation says, the DoJ has defined the US primary ticketing and tour promotion markets as constituting an “arbitrarily” selected subset of the larger concert venues. So, for example, stadiums are not included.
Seeking to demonstrate the impact of the DoJ focusing on what it calls “made-for-litigation markets”, Live Nation says that the DoJ claims it controls 86% of the primary ticketing market, but if stadiums are included in the stats, its market share falls to 49%.
Elsewhere in its new filing, Live Nation provides more detail regarding its claim that the DoJ has failed to provide evidence to back up some of its biggest allegations of anticompetitive conduct against the live giant.
That includes that Live Nation forces venues into exclusivity deals around ticketing. It is true that plenty of venues do have exclusivity deals with Ticketmaster. But, Live Nation claims, that’s because venues want exclusivity deals with their ticketing partners, with the new court filing stating, “every venue witness has testified that they seek and prefer exclusive ticketing contracts”.
Another allegation is that Live Nation tells venues that, if they don’t use Ticketmaster’s ticketing services, its promoters won’t book any shows into their spaces. “At most three venue witnesses support this claim”, Live Nation states, adding, “to put that in context, Ticketmaster has negotiated thousands of ticketing contracts with major concert venues over the course of the relevant time period”.
The DoJ mainly relies on “the testimony of other ticketing companies” to back up this claim, it goes on. Representatives of Ticketmaster's rivals, it explains, have stated that - when losing the business of a venue - sometimes a representative of said venue claims they went with Ticketmaster because they’d heard that a failure to do so might mean they lose access to Live Nation promoted shows.
But this is basically hearsay, Live Nation reckons, and would not be admissible if the government’s case was to proceed to trial. Therefore, it concludes, the judge should make a summary judgement in its favour, without requiring a trial and all the hassle that will bring.