LN, Hurwitz Swap Motions

The legal wrangling between Seth Hurwitz and Live Nation over an antitrust suit filed by the Bethesda, Md.-based promoter in March continues, with a filing countering LN’s motion to dismiss and a motion to file an amended complaint filed June 10.

Hurwitz filed an 11-count antitrust suit in March in U.S. District Court in Baltimore claiming that Live Nation engages in anti-competitive behavior and uses its influence to “entice and coerce artists to appear only at amphitheatres and other venues it owns, operates or at which it controls the booking.”

Live Nation countered in a motion to dismiss filed in April that Hurwitz and his companies are not prevented from competing and that he, and not LN, is the dominant promoter in the Baltimore market.

The timing of the suit, coming in the midst of a U.S. Department of Justice probe into the proposed merger between Live Nation and Ticketmaster Entertainment, is coincidental, Hurwitz told Pollstar.

The filing was not simply a reaction to the merger proposal, but the culmination of nearly two years of effort, Hurwitz said.

“At this point I am going to let the suit, which we have been preparing for more than a year, speak for itself,” Hurwitz added in a statement. “It says it all and I would prefer people read it and fully understand the claims we are making. But, basically, we contend that the essence of the tour deal is to use monopoly power to force artists to play only for Live Nation venues and where they wouldn’t otherwise, to the detriment of concertgoers, independent promoters and the artists.

“There is a huge difference between enticing artists to play your venues by doing a better job, versus forcing them to play your venues by controlling the market and the acts. Live Nation has attempted to portray this as evolution into a better business model, but we contend that it is intended to prevent fair legitimate competition, which is illegal.

“All I want is the opportunity to compete fairly, and we are asking the court to give us that opportunity,” Hurwitz wrote.

A spokesman for Live Nation said the company would not respond to Hurwitz’s statement at press time, but LN Global Music CEO Jason Garner disputed the statement to the Washington Post.

“We compete heavily with Seth in the D.C. market,” he told the paper. “And the fact is, he is the dominant promoter in the Washington, D.C., area. We do 5 percent of the shows in the market. … If we had the supposed power that Seth alleges, we wouldn’t have 5 percent of the market share.”

Hurwitz disagrees, calling Live Nation’s presence, particularly in terms of amphitheatres, a “death grip,” adding that it’s the amphitheatre market and Live Nation’s practice of locking up full artist tours that is the target of his suit.

And even if Merriweather Post Pavilion does successfully compete with Nissan Pavilion in Bristow, Va., Hurwitz argues his case aims to prove that Live Nation runs afoul of the law by “exercising its dominant position in the market to obtain contracts with artists” and by allegedly tying its promotion to venue services.

In countering Live Nation’s motion to dismiss the suit, Hurwitz argues that it’s not his obligation to present detailed specifics in order to “try” the suit before having an opportunity to develop that information through discovery. He also asserts that Live Nation’s filing succeeded in knocking down “straw men” but failed to address the key allegations while “mischaracterizing” them.

Given the voluminous amount of case law Live Nation attorneys cited in its response to the initial filing and its motion to dismiss, Hurwitz’s latest filing requests the judge grant a motion to accept an amended complaint filing out of “an abundance of caution.”