Live Nation’s Accusers Granted Confidential Document Protection

Requests by SeatGeek, ASM Global, and Anschutz Entertainment Group to restrict access to highly confidential documents submitted to the Department of Justice was granted at a hearing this week in the ongoing USA vs. Live Nation Entertainment antitrust case. The decision creates a two-tiered confidentiality scheme for access by Live Nation’s lawyers to documents submitted by other companies to the DOJ while it was investigating the entertainment giant before filing the lawsuit this spring.

Live Nation had been pushing to have two of its corporate executives – antitrust czar Dan Wall and SVP of Litigation Kimberly Tobias – allowed full access to all discovery on the case including confidential and sensitive information from Live Nation’s competitors. SeatGeek and AEG sent letters to the judge indicating their fears that the information would be put to work by Live Nation’s executives to unfairly compete or retaliate against them in future business operations.

Judge Arun Subramanian agreed with the need to protect such “highly confidential” materials in his ruling, issued on Monday in New York. Wall and Tobias will be able to access material that is non-public and confidential, but not information that includes “trade secrets, personnel files, and “evaluation of the strengths and vulnerabilities of product or service offerings.”

Only outside counsel will be permitted to access these highly confidential documents, with the level of confidentiality set by the party filing the documents.

The full protective order can be accessed here (PDF opens in new window).

Live Nation has a long history of being accused of anticompetitive and retaliatory behavior by competitors and business partners, a fact which was referenced heavily in the DOJ’s complaint. It was also at the core of the 2010 consent decree that put legal guidelines on the merger of LN and Ticketmaster, which was extended and clarified in 2019 after multiple violations were discovered by a DOJ investigation at the time.

The company also has a track record of using illegally obtained information from competitors, such as the Songkick case, where Live Nation and Ticketmaster executives were caught accessing a rival companies systems and using the information to drive it out of business. Two former executives went to jail, but the company itself avoided prosecution by paying a hefty fine.

With that in mind, it’s not surprising that rival companies wanted strict rules regarding the access to their confidential data submitted for the case.

“Giving [Live Nation’s executives] access to ASM’s materials about ASM’s dealings with Defendants’ competitors would risk the very retaliation of which Defendants are accused,” wrote an attorney representing ASM Global in a letter to the court explaining its desire for the protective order.

“SeatGeek hears on at least a weekly basis from venues that are reluctant even to meet with SeatGeek for fear of retaliation from Defendants,” wrote SeatGeek attorney William Kalema. “If the market were to learn that venues’ contracts and other communications with Ticketmaster’s competitors were made available to Defendants’ senior management, SeatGeek’s ability to market its product would be hindered even further.”

In their letter, AEG attorneys Justin Bernick and Claude Szyfer indicated a specific concern regarding Wall gaining access to their documents, given his obviously central role in defending the company against allegations of operating as an illegal monopoly since coming in-house a year ago after decades of representing the company as outside counsel. Wall had clearly “established himself as Live Nation’s primary spokesperson in the lead up to and wake of Plaintiffs’ Complaint.”

“Disclosure of these materials to Live Nation creates a substantial risk that discovery in this matter might facilitate the very antitrust violations that the lawsuit against Live Nation was intended to remedy,” Bernick and Szyfer wrote.