The US Department Of Justice has defended the deal it agreed with Live Nation to settle its antitrust litigation against the live music company, arguing that that deal will deliver benefits to the live music sector - and music fans - much sooner than if the government department had proceeded with its legal action.
Of course, 33 US states that were also involved in that legal battle did proceed with that litigation and convinced a jury that Live Nation and its Ticketmaster subsidiary operate an unlawful monopoly.
However, that legal battle is not yet over, with further court hearings required to decide what remedies should be forced onto Live Nation to break the monopoly, plus all the inevitable appeals. By settling, the DoJ insists, it’s addressing the problems much quicker.
In a new filing seeking court approval of its settlement deal, the DoJ says “based on the totality of circumstances, including the time, expense, uncertainty and risks associated with completing trial on the merits and completing any possible appeals” - and the “benefits to competition” secured in the proposed settlement deal - the US government “chose not to complete the full trial on the merits and ensuing remedies proceeding and potential appeals”.
In an accompanying tweet, Associate Attorney General Stanley E Woodward Jr, who is currently overseeing the DoJ’s antitrust division, says, “This settlement achieves a definitive result for American consumers today - expanding ticketing options, limiting exclusivity, increasing transparency for artists and protecting fans from inflated fees - rather than wait months or even years for a judicial resolution of the same. Real reform, real accountability, today”.
Of course, addressing the competition problems in the live music sector - caused by Live Nation’s dominant position - much more quickly sounds like a good thing. If you believe the operational changes Live Nation is committing to make in the settlement deal will change anything at all. Most of the company’s critics argue they will not.
That criticism is boosted by the fact the 33 US states that proceeded with the litigation were given the option to join the DoJ’s settlement deal and chose not to, reckoning Live Nation’s commitments simply don’t go far enough. And those states are still pushing for the most dramatic of the proposed remedies, forcing Live Nation to sell off Ticketmaster.
Meanwhile in US Congress, Democrats have slammed the DoJ’s Live Nation settlement amid criticism that the government department has become increasingly politicised, so that antitrust decisions are no longer made on public interest grounds, and instead are skewed towards what’s in the interest of President Donald Trump’s mates.
Live Nation has formally admitted to hiring the lobbying services of some close Trump allies and that its CEO Michael Rapino discussed the DoJ’s antitrust action directly with the president.
But in its new filing to the judge who oversaw the antitrust lawsuit, Arun Subramanian, the DoJ argues that its settlement deal addresses all the key issues that were raised in its original lawsuit, including in relation to some of the legal claims that the judge actually removed from the litigation back in February.
The deal, it writes, “provides relief designed to improve competition in markets, such as the artist promotion and venue booking markets, for which the court previously granted defendants’ motion for summary judgment”, over the DoJ’s “objections”.
The new filing also provides a pretty detailed summary of what Live Nation has agreed to in terms of opening up its ticketing systems to rivals; reducing restrictions on which promoters and ticket agents artists can work with when they play the company’s amphitheater venues; ending various exclusivity deals and a ticketing agreement with Oak View Group; divesting control over certain amphitheaters; limiting information sharing between Live Nation and Ticketmaster; but sharing more data with artists.
The DoJ also explains that these commitments will be set out in a new consent decree that will be in force for eight years; that a system will be in place to monitor compliance; and that Live Nation will be obliged to notify the DoJ of certain future acquisitions.
It then reminds Subramanian that, when deciding whether or not to approve the settlement deal, his job is to consider if Live Nation’s commitments address the specific competition issues raised in the original lawsuit, and not whether it addresses any other issues raised outside the courtroom.
Citing relevant legal precedent, it says “the ‘public interest’ is not to be measured by comparing the violations alleged in the complaint against those the court believes could have, or even should have, been alleged”, and that a proposed consent decree “must be approved even if it falls short of the remedy the court would impose on its own, as long as it falls within the range of acceptability”.