Live Nation Wants Antitrust Case Moved To DC, Asks Judge To Ax Amp Charges

Lawyers for Live Nation are, as expected, asking to move the antitrust case against the live entertainment giant to a Washington, D.C., court and are urging the judge to remove any charges connected to its amphitheater business from the case.

As the federal antitrust case moves through the slog of the preliminary motion stage, Live Nation’s attorneys filed a motion July 19 to move the case from the Southern District of New York, where the Department of Justice filed the lawsuit in May to the U.S. District Court for the District of Columbia.

The D.C. district, LN’s attorneys argue, has jurisdiction under the consent decree in effect since Live Nation and Ticketmaster merged in 2010.

“This lawsuit seeks a profound modification of the decree: unwinding the merger that it
expressly allowed,” the motion says. “Plaintiffs, most of whom are parties to the decree, ask the Court to do so based on allegations of misconduct that in some respects are squarely regulated by the decree.”

The motion argues that the consent decree designates “the D.C. Court as the forum for legal actions, like this one, that cover a broad collection of decree-related categories.”

In short, LN’s attorneys argue that not only should the case be moved to Washington because the consent decree mandates it, but also in the interest of justice, as the judges there are more familiar with the details of the decree.

The venue-change motion was expected. Live Nation argued from the time of filing that the suit should originate in the nation’s capital and reiterated that point during June’s case management hearing. Justice Department attorneys countered the scope of the case is larger than the consent decree. Judge Arun Subramanian said at the time he was inclined to keep the case in his court, but he would entertain motions to the contrary.

In a separate filing made July 17, Live Nation’s attorneys urged Subramanian to dismiss charges in the suit alleging “illegal tying” in its amphitheater business.

The DOJ argued that Live Nation conditions access for artists to its 56 amphitheaters by forcing them to choose Live Nation as their promoter. LN attorneys say the company’s “refusal to deal” rights are protected by established precedent.

“As a general matter, the Sherman Act does not restrict the long-recognized right of a [defendant] engaged in an entirely private business, free to exercise his own independent discretion as to parties with whom he will deal,” the letter to Subramanian reads. “The unimpeachable freedom to refuse to deal with rivals (in all but the rarest circumstances, which are not even arguably present in this case) rests on bedrock antitrust principles.”

Subramanian told LN attorneys at the June 27 hearing to identify issues with the DOJ filing in a letter so that when and if the Justice Department files an amended complaint, he would already have arguments before him on a dismissal motion.

Live Nation also asked Subramanian to dismiss the state antitrust claims made by 30 state attorneys-general.

Those claims, the lawyers argue, simply re-alleged the federal antitrust claims without tying them specifically to violations of state law and many, the letter claims, are outside the statute of limitations.

DOJ attorneys have until September 18 to respond to the letter.