Judge tells attorneys to get cracking on discovery because trial is coming.

The U.S. Department of Justice Antitrust Division and state antitrust authorities have plausibly alleged that Live Nation engaged in illegal tying and coercion of performing artists, a federal judge in the Southern District of New York has ruled. Further, the court found that the state attorneys general have standing to bring the action in their parens patriae capacity, i.e., their right to sue on behalf of their citizens (U.S. v. Live Nation and Ticketmaster, No. 24-cv-3973, S.D.N.Y.).

According to the government plaintiffs, Live Nation ties artists’ use of its large amphitheaters (a market in which it enjoys monopoly power) to its concert-promotion services, meaning artists that want access to Live Nation’s large amphitheaters must use its concert-promotion services. This has reduced competition in the concert-promotion-services market and, according to the state attorneys general, caused consumers to pay supracompetitive prices for tickets and related services. The government plaintiffs are seeking disgorgement, civil penalties, and injunctive relief to stop Live Nation from engaging in anticompetitive conduct moving forward.

Music fans should be cheering on the government plaintiffs in this case. If the government plaintiffs succeed, then competition in the concert-promotion-services market will increase and prices for these services will decrease. Since these services are an input when calculating ticket prices, a drop in prices for promotion services should cause ticket prices to decrease as well.

As it currently stands, more than 30 states back the lawsuit, including heavyweights like California, Texas, and New York. [i]

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Plausible Allegations, Causation

The court denied Live Nation’s motion to dismiss based on the following:

Plausible Allegations of Tying: The plaintiffs have plausibly alleged all necessary elements of a tying claim under the Sherman Act. This includes the conditioning of the sale of one product (large amphitheaters) on the purchase of another product (Live Nation’s concert-promotion services), coercion of artists, Live Nation’s monopoly power in the large-amphitheater market, anticompetitive effects in the concert-promotion market, and involvement of interstate commerce. ​

Coercion of Artists: The complaint provides detailed allegations that Live Nation coerces artists into using its promotion services if they want to perform at its large amphitheaters, which goes beyond a mere refusal to deal with rival promoters. ​

Artists as Consumers: Artists are the real consumers in the large-amphitheater market, as they are the ones deciding where, when, and under what terms they will perform, and promoters act on behalf of artists. ​

Antitrust Standing: The government enforcers have plausibly alleged antitrust injury by claiming that consumers paid supracompetitive prices for tickets due to Live Nation’s monopolistic practices. ​

Efficient Enforcer Factors: The state attorneys general meet the efficient-enforcer criteria, including the direct cause of injury, the motivation of consumers to seek lower prices, the non-speculative nature of damages, and the absence of issues related to duplicative damages or difficulty in apportioning damages.​

Based on the above, the court denied Live Nation’s motion to dismiss the complaint’s Sherman Act Section 1 tying claim and the state-plaintiffs’ Sherman Act damages claim, allowing the case to proceed to trial. The court reminded the parties that “discovery needs to get going in this case, because the March 2, 2026 trial date is set in stone.”
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Bench Trial or Jury Trial?

The court has not yet decided whether there will be bench trial or a jury trial. It seems the government plaintiffs would benefit from the jury trial they demanded given that most Americans have a less-than-positive view of Live Nation following its 2010 merger with Ticketmaster.

In a 2023 survey conducted by Global Strategy Group in 2023, 60% of respondents said the merger should be unwound, citing concerns about monopolistic practices and high ticket prices. In another survey, consumers voiced frustration with ticketing fees and access to tickets for popular events. These views were exacerbated by incidents like the Taylor Swift ticketing fiasco, when 11.6 million Swifties were denied tickets to her 2023 “The Eras Tour.” They sued but later voluntarily dismissed their case. Fans of other big acts – from Beyonce to Bad Bunny – have also sued for violations of antitrust and anti-racketeering laws.
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Tough Legal Standards

Still, the government faces an uphill battle in proving its tying claim at trial. For one, it must convince the court that the relevant tying market is for large amphitheater venues opposed to all live entertainment venues. If unable to do so, then the plaintiffs will be unable to show Live Nation has sufficient market power to coerce artists into using its promotional services. Likewise, it must prove that Live Nation has actually conditioned use of its large amphitheaters on use of its promotional services. Even if effectively true, large companies like Live Nation typically do not make such arrangement explicit, making this element difficult to prove.

Adding to the difficulties is the growing number of courts that are willing to apply the rule of reason standard to tying claims, opposed to treating them as per se violations. Under the rule of reason, courts engage in deeper market analyses that inevitably create more potential pitfalls for plaintiffs.
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Live Nation is Thriving Despite Legal Headwinds

As described below, calls to block (pre-close) or unwind (post-close) have been made repeatedly since the merger was announced in 2010. Yet, Live Nation continues to survive. In fact, business is brisk. The company just reported that 2024 was “live music’s biggest year yet,” with fans turning out in record numbers. This year is looking good, too, and can be even bigger “thanks to a deep global concert pipeline, with more stadium shows on the books than ever before.” The company is building more venues, which the company said will help drive double-digit operating income and adjusted operating income (AOI). The company boasted $19 billion in revenue for 2024, up 2% from 2023, and AOI of $530 million, a 65% increase.

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15 Years of Regret, Scrutiny, and Litigation

You might think the merger of the nation’s largest live entertainment company with the largest live entertainment ticketing company has been questioned before, during, and ever since the deal closed in 2010. And you would be right. Here is a timeline of some of the bumps in the 15-year journey of Live Nation Entertainment Inc., the company formed when Live Nation and Ticketmaster merged. Included here are noteworthy antitrust actions – both public and private – against the company.
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2010

January: Live Nation and Ticketmaster complete their merger, forming Live Nation Entertainment.

March: The U.S. Department of Justice (DOJ) announces a consent decree to address antitrust concerns, requiring Ticketmaster to license its software to competitors and divest certain assets.
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2019

April: The DOJ investigates Live Nation for allegedly violating the consent decree by retaliating against venues that chose competitors for ticketing services.
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2020

April: Consumers file proposed class action in the Central District of California. Olivia Van Iderstine v. Live Nation, No. 2:20-cv-03888, C.D. Calif.

December: Live Nation agrees to extend the consent decree until 2025 and pay a $10 million fine to settle allegations of violating the decree.
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2021

September: A federal judge in California granted Live Nation and Ticketmaster’s motion to arbitrate Iderstine v. Live Nation and dismissed the case. Plaintiffs appealed to the Ninth Circuit.
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2022

December: Sterioff v. Live Nation and Ticketmaster (No. 2:22-cv-9230, C.D. Calif., Western Div.) is filed by Taylor Swift fans, but voluntarily dismissed March 6, 2023.
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2023

January: A bipartisan group of Senators, including Amy Klobuchar (D-MN) and Mike Lee (R-UT), hold a Senate Judiciary Committee hearing to address concerns about Ticketmaster’s market power and its impact on consumers and competition. During this hearing, lawmakers expressed strong criticism of Live Nation and Ticketmaster’s practices and discussed the possibility of breaking up the company to restore competition in the live event ticketing market.

February: Ninth Circuit affirms mandatory arbitration ruling in Oberstein v. Live Nation (formerly Iderstine v. Live Nation).

March: The Sterioff Swifties voluntarily dropped their case.
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2024

May: The DOJ files an antitrust lawsuit against Live Nation and Ticketmaster, accusing them of monopolization and other unlawful conduct that harms competition in the live entertainment industry. Two private actions are filed in the Southern District of New York (Stevens v. Live Nation, No. 1:24-cv-04106, S.D.N.Y. (May 29, 2024) and Leifer v. Live Nation, No. 1:24-cv-03994, S.D.N.Y. (May 23, 2024)).

August: Another private antitrust action is filed in the Southern District of New York (Jacobson v. Live Nation Entertainment, Inc., Case 1:24-cv-06538, S.D.N.Y. (Aug. 29, 2024)). The court consolidates the Stevens and Leifer cases into the Jacobson proceedings.

November: Live Nation files a motion to move Jacobson, Stevens, and Leifer cases into arbitration, saying the plaintiffs agreed to that when purchasing tickets.

December: More than 300 fans of superstar entertainers sued the companies in federal court in Los Angeles for violating antitrust and racketeering laws, seeking compensatory and punitive damages and injunctive relief (Cendejas v. Live Nation and Ticketmaster, No. 24-ST-CV-30090, Super. Ct., Los Angeles Co.).
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2025

January: Federal judge in California denies Live Nation’s motion to pause a private action given the company was already litigating antitrust issues with the DOJ and state AGs in New York. Skot Heckman v. Live Nation, No. 2:22-cv-00047, C.D. Calif.

March: A federal judge denies Live Nation and Ticketmaster’s motion to dismiss key parts of the DOJ’s antitrust lawsuit, allowing the case to proceed, which suggests Live Nation’s tactics are under serious scrutiny.
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2026

March 2: Jury selection is to begin for a trial that is “set in stone.”

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What Happens if the Government Wins?

Historically, structural remedies (such as divestitures) have been preferable to behavioral remedies (like consent decrees) in addressing antitrust concerns over proposed mergers. As Live Nation and Ticketmaster have demonstrated, behavioral remedies are too easily ignored or abused by post-merger behemoths. The benefits of violating restrictions frequently outweigh the punishment. Their behavior also highlights the anticompetitive effects that can result from large-scale vertical mergers. Bundling, tying, and exclusive contracts are just a few of the competitive concerns that we have seen playing out here, not to mention a stagnation in the entry of new competitors in various complementary markets.

[i] Joining the DOJ in the suit are the attorneys general of Arizona, Arkansas, California, Colorado, Connecticut, Florida, Illinois, Indiana, Iowa, Kansas, Louisiana, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin, Wyoming, and the District of Columbia.