Live Nation Asks Judge to Dismiss Huge Portions of Antitrust Suit

Live Nation Entertainment’s legal team is arguing that a large chunk of the Department of Justice’s antitrust lawsuit seeking to break up the alleged monopoly over the ticketing business — and its “tying” arrangements with ticketing and the use of its venues — are perfectly legal, and further contends that all of the states who have signed on as co-plaintiffs should have their claims dismissed, according to a letter to judge Arun Subramanian filed this week (PDF opens in new window).

“Plaintiffs’ claim that Defendants have created an “unlawful” tying arrangement concerning the use of large amphitheaters and artist promotions markets… should be dismissed because in substance it is tantamount to a claim that Defendants have a duty to deal with rival concert promoters,” reads the letter signed by Live Nation Entertainment’s legal team, led by Alfred C. Pfeiffer of Latham & Watkins LLP and David R. Marriott of Cravath, Swaine & Moore LLP as co-lead trial counsel. Live Nation’s antitrust czar Dan Wall had previously worked at Latham & Watkins LLP before coming on to lead its monopoly defense last year.

“Each of the state-law claims is deficient and should be dismissed for multiple reasons,” it continues.

The letter was filed in response to Judge Subramanian’s invitation to the defense that they file a letter to the court “identifying issues as to which [Defendants] would contemplate moving to dismiss” the lawsuit during a pretrial hearing on June 27.

Much of the DOJ case centers around Live Nation’s use of dominance in one segment of the entertainment business to harm competition in other segments of business. It argues that its acquisition of so many venues forces artists to use them as a promoter in order to access those venues, since Live Nation locks out competition. As the DOJ pointed out in its press release announcing the case, Live Nation “owns or controls more than 265 concert venues in North America, including more than 60 of the top 100 amphitheaters in the United States.”

Effectively, Live Nation’s legal team is saying that the government has no right to force it to do businesses with competing promoters in buildings it owns.

“As a general matter, the Sherman Act does not restrict the long-recognized right of a [defendant] engaged in an entirely private business, free to exercise his own independent discretion as to parties with whom he will deal,” the letter asking for the dismissal of the case argues.

Live Nation has no obligation “to extend a helping hand to new entrants” or help its rivals “survive or expand,” Pfeiffer notes, adding, “The unimpeachable freedom to refuse to deal with rivals (in all but the rarest circumstances, which are not even arguably present in this case) rests on bedrock antitrust principles.”

As for the state cases, Live Nation’s lawyers argue that the state claims – which come from states representing a huge majority of the United States population – are “threadbare and conclusory,” they say. “They merely incorporate by reference all of the preceding allegations in the [DOJ] complaint, cite the state laws Defendants supposedly violated, and request relief.”

It goes on to argue that many of the state claims should be time-barred by the statute of limitations. “Much of the conduct alleged in the complaint dates back years,” it says. “The complaint discusses the Ticketmaster merger in 2010… the acquisition of promoters in 2016 and 2017… and correspondence with Oak View Group in 2016. Under every state plaintiffs’ relevant statute of limitations – the longest of which is six years – these claims are untimely.”

The Department of Justice has until September 18 to respond to the arguments. The letter from Live Nation Entertainment’s trial team can be read in its entirety here (PDF opens in new window)