Live Nation and Ticketmaster filed a motion earlier this week asking a federal judge to pause the upcoming Department of Justice antitrust trial while two legal questions are reviewed by an appeals court.
Now the DOJ has hit back — calling the move a “desperate plea” and arguing the motion is not only “meritless” but legally impermissible.
In a 15-page opposition brief filed on Tuesday (February 24), which you can read in full here, the DOJ and attorneys general from across the US urged Judge Arun Subramanian to reject Live Nation’s motion and allow the trial to proceed as planned.
Jury selection remains scheduled to begin on March 2.
Live Nation’s motion to pause the case for a so-called interlocutory appeal followed last week’s decision by Judge Arun Subramanian. It narrowed the government’s case, dismissing claims that Live Nation monopolized the national concert promotion market, but allowed several major claims to proceed to trial, including allegations around Ticketmaster’s exclusive venue contracts and Live Nation’s practice of tying access to its amphitheaters to its promotion services.
Live Nation is not appealing the parts of the ruling it won. Instead, it is challenging two specific legal conclusions within the order that allowed the government’s remaining claims to survive.
The opening line of the DOJ’s response sets the tone: “On the eve of a landmark monopolization trial, Defendants make a desperate plea. Rather than wait for the Court to rule on all their pending motions to reconsider, they have now moved to certify two questions for interlocutory appeal. But this motion is yet another meritless attempt to delay trial.”
Live Nation’s formal motion followed a public statement published last week by Live Nation’s EVP of Corporate and Regulatory Affairs, Dan Wall, titled ‘It’s Time to Move On,’ publicly calling on the DOJ to settle the case.
It was removed from Live Nation’s website without explanation ahead of the interlocutory appeal motion.
The DOJ argues that Live Nation’s motion is “statutorily barred” under a federal law known as the Expediting Act, which expressly prohibits this type of mid-case appeal in antitrust enforcement actions brought by the US government.
According to the DOJ, the Act was designed to prevent “fragmented appeals” in government antitrust cases and to avoid “undue delay and disruption.”
Live Nation had argued in a footnote in its own motion that the Expediting Act does not apply here because the United States is not the sole complainant and because the plaintiff states are also seeking damages, not just equitable relief.
The DOJ dismissed that reading, noting that Live Nation “point[s] to no case law in support of their novel reading of the Expediting Act.” The opposition added, pointedly borrowing Live Nation’s own language: “Thus, to quote Defendants, their motion is ‘dead on arrival.'”
Even setting aside the statutory bar, the DOJ argued that Live Nation fails to meet the strict criteria required for an interlocutory appeal, describing the motion as “the quintessential brazen attempt at delay that courts commonly reject.”
The opposition focused heavily on the timing of the motion, noting it was filed on the “eve” of trial and would “improperly prolong — not ‘materially advance’ — the proceedings.”
The DOJ also argued that neither of the two legal questions Live Nation seeks to certify, concerning the definition of customer-based ticketing markets and the tying claim related to promotion services, qualifies as a “pure, controlling question of law.”
Instead, the DOJ characterized both as deeply fact-intensive inquiries that are inappropriate for immediate appellate review.
On the question of market definition, the DOJ noted that Live Nation’s primary supporting precedent, the FTC v. Meta Platforms ruling, is an out-of-circuit district court opinion currently on appeal, and involves materially different circumstances.
On the tying claim, the DOJ argued that Live Nation does not need to prove the existence of a separate market for the tied product, in this case, promotion services, in order for the claim to proceed, and that no existing legal precedent supports Live Nation’s argument that it does.
The DOJ also pushed back on Live Nation’s suggestion that an appeal could shorten the trial, writing that “Defendants seek to delay a five-week trial that (at realistic best) would still result in a multi-week trial should they prevail on every issue they raise.”
The only thing Live Nation could realistically achieve through the appeal, the DOJ argued, is that “an appellate resolution ‘may significantly affect the parties’ bargaining position’ for the purposes of settlement negotiations. But this is true for every trial.”
The DOJ also opposed Live Nation’s request for a stay pending appeal, arguing the defendants have shown no irreparable harm beyond ordinary litigation expenses, and that a last-minute stay would “greatly prejudice” the plaintiffs.
On this point, the DOJ highlighted a practical concern: “Plaintiffs do not control those witnesses — many of whom have already made travel plans — and it is possible they will not be available at a later trial date. Although that may be a desirable outcome for Defendants, it is a key reason that last-minute interlocutory appeals and stays on the eve of trial are greatly disfavored.”
The filing concluded: “Defendants’ anticompetitive conduct has harmed, and will continue to harm, consumers until it is deemed unlawful. This last, desperate attempt to avoid that outcome — on the eve of trial — should be rejected so Defendants can be held accountable by a jury for their anticompetitive conduct.”
The DOJ, joined by attorneys general from 39 US states and the District of Columbia, sued Live Nation and Ticketmaster in May 2024.Music Business Worldwide