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LN Loses Round In IMP Suit
A federal judge in Baltimore has denied summary judgment to Live Nation, which sought dismissal of an antitrust suit filed in 2009 by the Seth Hurwitz-owned
The suit accuses Live Nation of unlawfully amassing monopoly power and restraining competition through illegal tying arrangements with artists.
U.S. District Judge J. Frederick Motz also denied Live Nation’s move to strike expert testimony by Harvard University law professor Einer R. Elhauge, who has served as chairman of the Antitrust Advisory Committee to the Obama campaign and teaches courses on subjects including antitrust, contracts, corporations and legislation.
IMP filed antitrust claims under the Sherman and Clayton acts, as well as Maryland Antitrust Act and common law claims for tortious interference with contracts and unfair competition. It charges Live Nation with deliberately and illegally acquiring monopoly power in the concert promotion business and seeks compensatory, treble and punitive damages plus attorneys fees and injunctive relief.
While Live Nation lost its bid to have the suit dismissed and strike the expert testimony of Elhaunge, motions to strike other exhibits and testimony were granted in part. But the key point is that the suit, three years in the making already, continues.
The suit may sound like déjà vu. Live Nation Entertainment has to date never specifically acknowledged it in quarterly or annual financial reports to shareholders, but has been chugging along through discovery, depositions, declarations and delays since it was filed by Hurwitz on March 5, 2009.
The witnesses referred to in the memorandum are a Who’s Who of the concert business, and some of the objections to their testimony seem minor. For instance, Live Nation attempted to strike Stone City Productions’ Jack Orbin’s statement because IMP failed to notify LN attorneys of its existence.
Yet five months after learning of it, Live Nation had yet to depose Orbin and Motz allowed the testimony to stand – both not without some chastising of the IMP legal team. And not for the only time in the memorandum.
Hurwitz may also be getting taken to the woodshed, at least privately, by his own lawyers. Live Nation, unsurprisingly, objected to Hurwitz’s own declaration in general and a number of individual statements the company considered hearsay – and so did Hurwitz’s team.
Among Live Nation’s objections are four specific statements made by Hurwitz that allegedly contradict his own deposition testimony. Plaintiffs, in this case It’s My Party, objected to Hurwitz’ own supposed admission that Live Nation may not in fact exert monopoly power in his own local region. Motz deferred ruling on the question.
According to court documents, Hurwitz was asked “So long as there is competition from Wolf Trap and indoors and stadiums there can’t be a monopoly, can there?” Motz writes that the series of questions sought to “elicit Hurwitz’s legal conclusion as to what could constitute a monopoly.
“Plaintiffs object to the form of the question at the time of the deposition, and they renew their object now. Because Hurwitz is asked for a legal conclusion regarding monopoly power, or the answer to a mixed question of law and economic analysis, as plaintiffs characterize it, it is arguably inadmissible. On the other hand, in light of the context of the testimony and Hurwitz’s sophistication and experience, it may well be admissible.”
The judge writes that more discovery is needed on several key issues and denied summary judgment without prejudice, meaning Live Nation may refile the motion once more discovery is conducted.