Live Nation Entertainment has told a New York federal court that an appeals-court decision the states are relying on to defend their antitrust win does not help them – and instead supports the company’s bid to overturn the verdict.
The filing responds to a letter from the Plaintiff States, who on July 22 submitted a July 13 ruling by the US Court of Appeals for the Second Circuit as supplemental authority in the case.
You can read the letter from the Plaintiff States in full here.
The exchange lands days before Judge Arun Subramanian is set to hear arguments on Friday (July 31) on Live Nation’s motions to throw out the April jury verdict, or to win a new trial.
The states pointed the court to a July 13 decision, Cumulus Media New Holdings v. The Nielsen Co. (US).
In that case, the Second Circuit upheld a preliminary injunction, agreeing the lower court was right to find that Nielsen had likely unlawfully tied the sale of its national market data to the purchase of its local market data.
In their letter, the Plaintiff States said the appeals court “held that a policy conditioning the purchase of one product on the purchase of another need not be express and that ongoing enforcement of the policy is sufficient to constitute coercion.”
They submitted the ruling in support of their oppositions to Live Nation‘s motions for judgment as a matter of law and for a new trial, both of which target the April 15 verdict.
Live Nation and Ticketmaster replied the next day, on July 23, arguing that the decision “provides them no support,” according to a copy of the letter, which you can read here.
The companies said Cumulus instead backs Live Nation‘s post-trial motions, because it requires proof that a buyer was coerced into purchasing an unwanted product.
“There is no evidence of an ‘unwanted’ product here, nor even that any artist unwillingly purchased promotion services from Live Nation,” the companies wrote.
Live Nation also argued that a tying claim requires proof of harm to competition in the tied market, and that its rivals had not been shown to suffer such harm.
“There is no evidence that Live Nation‘s competitors like AEG have been similarly affected in any tied promotions market, of any scope,” the letter said.
“There is no evidence that Live Nation‘s competitors like AEG have been similarly affected in any tied promotions market, of any scope.”
Live Nation Entertainment’s letter
“At most, Plaintiffs argue AEG has lost an unspecified number of national amphitheater tours, but AEG is otherwise thriving,” it added.
The verdict the companies are trying to overturn included a finding that Live Nation unlawfully tied artist promotion services to the use of its large amphitheaters, meaning artists had to use its promotion services to play those venues, as previously reported by MBW.
The jury sided with the states on every claim, finding that Live Nation and Ticketmaster had illegally monopolized the US ticketing and amphitheater markets.
It also found that consumers were overcharged by USD $1.72 per ticket.
Live Nation filed its motions to overturn the verdict or secure a new trial on May 21, and has said the verdict is “not the last word on this matter,” as MBW reported.
On a separate track, Live Nation and the US Department of Justice both moved on Friday (July 24) to block a group of states from obtaining discovery into the government’s settlement with the company.
The states, which call themselves the “Requesting States,” asked the court on July 16 to authorize discovery into how the settlement was reached and whether it does enough to restore competition, as previously covered by MBW.
The DOJ opposed what it called the “sweeping ‘discovery’ request as inappropriate and unnecessary under the Tunney Act,” and told the court it “should deny the motion in full,” according to the July 24 letter, which you can read here.
The Department said discovery into “the process and ‘terms of any settlement,’ including offers that were never accepted, would be intrusive, burdensome, and irrelevant.”
Live Nation‘s own letter (read here) said the states were seeking “a blank-check authorization from the Court for full merits-like discovery under the Tunney Act.”
The company said such discovery “is exceptionally rare,” and noted that its settlement talks with the states had “resulted in six of the states joining it.”
The settlement, reached a week into the March trial, let Live Nation keep Ticketmaster.
It set aside a USD $280 million fund for state damages claims, required the divestiture of 13 amphitheater booking agreements, and extended the company’s consent decree with the DOJ by eight years.
It remains subject to review under the Tunney Act, which requires Judge Subramanian to determine whether the deal is in the public interest before it can be finalized, with a public comment period running until September 4.Music Business Worldwide
