‘We are either allies or adversaries.’
‘We are either allies or adversaries.’
Following a tumultuous week after the mid-trial settlement achieved by the Justice Department with Live Nation-Ticketmaster, the antitrust proceedings resumed rather smoothly on Monday — this time led by numerous states.
This outcome was not what the states had originally intended. Due to concerns regarding their ability to effectively take control over the case and the worry that the jury would be influenced by the ongoing changes, they pushed for a mistrial, which would have delayed proceedings to an uncertain date in the future. However, an irked Judge Arun Subramanian appeared ready to refuse the request, and once the states figured out how to enlist the DOJ’s expert witness and swiftly brought new hires on board, they retracted their mistrial appeal. After reintroducing the new participants, the trial continued from approximately where it had paused a week earlier, with testimonies concerning Live Nation’s use of its “velvet hammer” against competitors.
Subramanian welcomed the jurors back after their “spring break” and inquired if they had read or encountered any information about the case during their absence, which is against jury instructions. They either shook their heads or stayed silent. He reminded them that the US had settled its claims, as had a few states, but the remaining states were continuing their legal proceedings. Jurors were instructed not to draw any conclusions based on the fact that those entities were no longer part of the case, he emphasized.
With the DOJ no longer involved, the attorneys who initially questioned early witnesses were replaced by a new legal team co-led by Jonathan Hatch, an attorney from the New York AG’s office, and Jeffrey Kessler of Winston & Strawn, who had represented college athletes in the pivotal Supreme Court antitrust lawsuit against the NCAA regarding compensation.
The states’ lawyers resumed the questioning of Jay Marciano, the COO of AEG, a competitor to Live Nation across various aspects. While Hatch refreshed the jurors on segments of Marciano’s earlier testimony, the examination was otherwise fairly conventional. Marciano discussed ticketing models he favors in Europe, where multiple ticketing services often collaborate at a venue, in contrast to the typical situation in the US where venues often engage in exclusive agreements with Ticketmaster.
During cross-examination, Marciano addressed an incident previously mentioned to the jury: a call between the former CEO of the Barclays Center and Live Nation’s CEO Michael Rapino, who responded to a proposal to abandon Ticketmaster by stating that securing concerts for the arena would be more challenging with the nearby new UBS Arena. While Barclays perceived this as a threat to safeguard Ticketmaster, Marciano confirmed it is common for concert promoters to leverage competition among venues to negotiate more favorable terms, and that the UBS Arena likely would pull artists away from Barclays as the new local venue.
Live Nation’s president of US concerts, Robert Roux, addressed another allegation: that Live Nation utilizes its significant control over US amphitheaters to uphold its monopoly power, providing no real alternatives for artists aiming to book large outdoor venues. Plaintiff attorney Josh Hafenbrack illustrated through Live Nation’s own business presentations that the firm made substantial advancements to secure dominance over four of the top five amphitheaters in the US based on ticket sales from 2016 to the present. A presentation from 2018 displayed a significantly highlighted list of the top 100 amphitheaters globally, with the green highlights indicating the 62 venues that were owned, operated, or exclusively booked by Live Nation at the time. Since then, Roux affirmed, the company has incorporated several more venues into that total.
Live Nation refutes claims of anticompetitive behavior, asserting that the states overlook other types of venues that compete for the same events. However, Roux mentioned in a 2015 email that numerous non-superstar performers express a desire to play amphitheaters — many of which, evidence presented in court suggests, are either controlled or exclusively booked by Live Nation. He also noted that in these scenarios, there was “room for tighter negotiations and deals.”
Other email exchanges illustrated how Live Nation considers its competition when evaluating potentially profitable deals. In a correspondence from 2018, Rapino questioned why Live Nation should allocate shows to a promoter in the South, Red Mountain Entertainment, which they were considering acquiring, before they had actually finalized the purchase. Roux indicated at that time that the message to Red Mountain should be, “We are either allies or adversaries.” He characterized this tactic as a “velvet hammer.” On the witness stand, Roux clarified that the message was not intended to “antagonize” the promoter, but to be forthright and convey a definite message. In another exchange referencing Red Mountain, Roux articulated that Live Nation must avoid being “complacent” and “allowing smaller players to encroach from the edges.” Roux stated that this comment was intended as a general observation, not specifically aimed at that promoter. Live Nation acquired Red Mountain in 2018.
In 2020, Rapino counseled Roux against permitting Radio Disney and concert promoter Superfly into a Live Nation venue, even after they proposed a contract that would guarantee at least $400,000 in profit for Live Nation for renting out the amp. One executive expressed concerns about allowing a third-party promoter into the amphitheater, despite the attractive financial offer.
At last, Roux testified that Live Nation’s profits per fan have increased significantly in recent years, with profitability in large amphitheaters, a crucial market in this case, outpacing other venue categories from 2019 to 2024. Before factoring in certain costs, the firm reported a profit of $386 million from large amphitheater operations in 2024, nearly three times what they earned in that segment in 2019.
Apart from the delays experienced during the case while the states’ team arranged its next steps without the DOJ, there was little noticeable difference in the trial’s progression or how the new lawyers conducted their work, compared to the initial week of proceedings. The trial is still projected to last several more weeks, although both sides indicated they have worked to streamline their witness lists to make up for lost time. Toward the conclusion of this week, one of the trial’s most prominent witnesses is anticipated to testify: Live Nation’s CEO.
