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After four days of deliberation, a New York jury reached a verdict on April 15, finding that Live Nation and its Ticketmaster subsidiary unlawfully monopolized concert ticketing services for major venues in the United States in violation of Section 2 of the Sherman Act. The decision is a significant win for the state attorneys general (AGs) who pursued the case after the Department of Justice (DOJ) settled mid-trial and may embolden state AGs to more frequently part ways with federal enforcers.
The path to verdict was an unusual one. Nearly 15 years after it chose not to challenge the Live Nation-Ticketmaster merger, the DOJ reversed course and, following in the footsteps of private class actions filed by disgruntled Taylor Swift fans, sued the long-combined company for unlawful monopolization in violation of Section 2. A number of state AGs joined with the DOJ in filing the complaint. The DOJ, however, announced a settlement with Live Nation mid-trial and exited the case, forcing the state AGs to choose between signing on to what some of them deemed an insufficient settlement or proceeding with the trial and having to contend with the signal that the DOJ’s settlement sent about the strength of their case. While a handful of states joined the settlement, a coalition of more than 30 states and the District of Columbia made the rare decision to press forward without the DOJ, retaining new trial counsel and ultimately persuading a jury that Live Nation’s conduct went beyond aggressive competition and violated federal antitrust law.
A growing willingness of states to go it alone. Historically, state AGs have regularly joined antitrust actions brought by the DOJ and the Federal Trade Commission (FTC) and have often taken somewhat of a backseat to federal enforcers when it comes to large merger cases and the enforcement of federal antitrust laws more generally. This began to change in the first Trump and the Biden administrations, with state AGs bringing their own Sherman Act cases against Meta and Google and the Washington AG successfully challenging the Albertson-Kroger merger. This divergence has accelerated in the first two years of the second Trump administration. State AGs are opposing in Tunney Act proceedings the DOJ’s settlement concerning the HPE-Juniper merger and have sued to enjoin the closing of the NexStar-Tegna merger after the DOJ unconditionally ended its investigation (the court granted a preliminary injunction the day after this article was published). The victory in the Live Nation case is apt to give state AGs added confidence in pursuing these challenges and encourage them not to shy away from challenging other mergers or conduct that federal enforcers have ostensibly blessed. The pending Paramount-Warner Bros. merger, which the DOJ has already cleared, is a likely next candidate, particularly given the vocal opposition from many state AGs, most notably Rob Bonta of California.
The Section 2 revolution.For a variety of reasons, including the evolution of pro-defendant legal standards in this area, demanding elements of proof and the costly burden of extensive discovery, very few monopolization cases brought under Section 2 of the Sherman Act have ever gone to trial. But the tide has started to turn: The Live Nation case is now one of three recent matters in which a Section 2 challenge not only proceeded to trial but resulted in a finding of liability, with the other two being the Google Search and Google Ad Tech cases, both litigated by the DOJ during the Biden administration. Both the FTC and the state AGs brought — and lost — cases against Meta that featured Section 2 claims. There are several additional Section 2 cases pending against large tech companies that may go to trial in the next year or two.. In addition to injecting a bevy of jurisprudence into a historically thin area of the law, these cases may also provide a road map for using Section 2 to revisit long-ago transactions that cleared merger review. Live Nation is just the latest example: The Google Ad Tech case, filed in 2023, involved allegations concerning Google’s 2008 and 2011 acquisitions of DoubleClick and AdMeld, respectively, and the FTC’s case against Meta stemmed from Meta’s 2012 and 2014 acquisitions of Instagram and WhatsApp, respectively. While enforcers do not have a perfect track record in these cases (and all are subject to appeal), the successes may prompt additional attempts to wrap reappraisals of high-profile mergers into broader Section 2 challenges.
Bad documents strike again. Notwithstanding the absence of an “intent” element in the test for monopolization, Live Nation is just the latest example of the critical role documents that feature careless or salacious language can play in these cases when they get to trial. According to public reporting, the jury took special notice of internal Live Nation chat messages in which employees openly bragged about up-charging customers through fees as well as recorded phone calls with colorful language that the states argued reflected an awareness of market power. Even a small number of these types of documents and recordings can reinforce plaintiffs’ narratives of anticompetitive conduct and resonate strongly with judges and juries alike. Moreover, they underscore that discovery is not limited to emails and slide presentations; enforcers routinely seek and obtain voicemails and ephemeral messages of all types. Companies would be well served by putting in place strong antitrust compliance programs that can sensitize employees and executives to the risks that loose language can create.
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