Witness List For Live Nation Antitrust Trial Likely To Be Pared Down, Top Industry Execs Slated To Give Testimony

A U.S. District Court judge yesterday (Feb. 18) declined to dismiss the DOJ’s antitrust lawsuit against Live Nation, but did dismiss some charges against the concert promotion and ticketing company, meaning the voluminous witness list (below) that includes some of the most senior executives in the live business could be pared down before the March trial.

The recent ruling by District Court Judge Arun Subramanian dismissed charges that Live Nation monopolized concert promotion and major venue booking, but the promoter still must face charges related to its amphitheater and concert promotion business and allegedly unfairly monopolizing ticketing at major concert venues.

A list of witnesses from both plaintiff and defendant was initially revealed as part of a pre-trial order on Feb. 12 and includes top executives across the industry, with an unwieldy list of heads of agencies, top management companies, major venues, promotion companies, labels and even an artist (Kid Rock)—with current and former employees. With yesterday’s ruling, that list could look different by the time the March 2 trial kicks off in Manhattan, and Live Nation had already asked the court to compel plaintiffs — being the U.S. Department of Justice and 40 U.S. states — to narrow down what it says is an implausibly large list.

“Plaintiffs’ witness list is not a realistic assessment of the witnesses they intend to call,” read a Feb. 14 letter from attorneys for Live Nation led by Lathan & Watkins LLP. “It is instead an attempt to keep Defendants guessing about Plaintiffs’ case until the last possible moment. This is improper.”

However, Plaintiffs argue that Live Nation’s own list of defendants – including a similar swath of heavy hitters across the industry – includes 86 names, 20 more than the Plaintiffs witness list—that would make for roughly 152 witness list for an eight-week trial could be difficult to manage at best. Keep in mind many witnesses were called by for both the plaintiffs and the defense., not every witness would be called upon during trial and some will only have to give depositions

“The Court should deny Defendants’ motion for the reasons described above,” the DOJ’s attorneys wrote in a letter to U.S. District Court Judge Arun Subramanian. “In the alternative, Plaintiffs would be amenable to a compromise that would require both sides to simultaneously narrow their lists to 55 total witnesses.”

Jury selection is scheduled to begin March 2 in Manhattan.

Barring a settlement, which many insiders believe is possible if not likely, the government’s antitrust case against Live Nation will proceed to trial next month. Subramanian said the 40 state plaintiffs can seek damages for fans under the parens patriae doctrine.

“There is a genuine dispute of material fact as to whether Live Nation has used monopoly power to foreclose competition,” Subramanian wrote in his 44-page decision.

Dan Wall, Live Nation’s Executive Vice President Corporate & Regulatory Affairs, struck a sanguine tone in the wake of the judge’s decision.

“We are grateful that the district court dismissed all claims in the concert promotions and concert booking markets. With those claims gone, we see no possible basis for breaking up Live Nation and Ticketmaster,” he said. “We look forward to addressing the remaining claims at trial. The deficiencies we identified in the Government’s monopoly power and conduct claims have not gone away, and we continue to believe that we will prevail in the end. “

In its motion seeking dismissal, Live Nation argued there was no proof that its actions harmed consumer welfare — a key component of U.S. antitrust law — and argued against the states’ ability to sue on behalf of private citizens.

Another factor in the trial came last week with the news that the top attorney with the Department of Justice’s antitrust division parted ways with the department, Gail Slater, the assistant attorney general for the antitrust division, Feb. 12 after less than a year in the post, saying she leaves the department filled with “great sadness and abiding hope.”

A Live Nation spokesperson did not respond for comment at press time.