‘Time To Move On’: Live Nation Ramps Up Settlement Effort

Following the dismissal of portions of its pending antitrust case, Live Nation is making its most public push yet for a settlement.

Dan Wall, the company’s executive vice president for corporate and regulatory affairs, penned a post titled “It’s Time To Move On,” arguing that the remaining portion of the case brought by the federal government and more than three dozen states cannot result in the breakup of Live Nation and Ticketmaster. Instead, he says, the parties should seek a settlement that can satisfy all sides.

“It is the dismissal of the concert promotion claims that undermines any serious argument for breaking up Live Nation and Ticketmaster. First, it ends the narrative that concert promotion and ticketing are ‘mutually reinforcing monopolies.’ There was never much substance to that contention, but the idea at least was that the two monopolies propped up one another. Now DOJ has failed to prove there is a concert promotion monopoly. DOJ can’t make this reinforcing monopolies argument anymore,” he wrote. “Second, it means that separating Live Nation the concert promoter from Ticketmaster would not serve any remedial purpose, let alone be a legally permissible remedy. The case is now about three things: long-term exclusive ticketing contracts, a discrete ticketing deal Ticketmaster has with Oak View Group, and Live Nation’s policy of not renting its amphitheaters to rival promoters. None of those claims, nor even all three taken together, warrants more than standard injunctive relief.”

Oak View Group is Pollstar‘s parent company.

Wall says that divestiture — a rare remedy that hasn’t been used since AT&T’s bust up in 1980 — is a last resort that was avoided in antitrust cases against Microsoft and Google and one that no longer applies to Live Nation.

“[The Microsoft and Google Ad] cases hold that ‘divestiture is a remedy that is imposed only with great caution, in part because its long-term efficacy is rarely certain.’ They note it has mostly been used to ‘terminat[e] monopolies formed by mergers and acquisitions,’ a rationale that cannot apply here because, by the DOJ’s own telling, Ticketmaster was already a ticketing monopoly when it combined with Live Nation. The merger was nevertheless approved because, in the DOJ’s own words at the time, it was ‘sure to benefit concertgoers, artists, and the industry as a whole,'” he wrote. “Even before yesterday’s summary judgment decision, it was evident that DOJ could not meet the Microsoft/Google ‘causation’ requirement that the defendant’s monopoly power was rooted in unlawful conduct that could only be remedied by divestiture.”

Instead, Wall writes, Live Nation is prepared to negotiate for other forms of relief.

“Cases in this posture nearly always settle, and with the prospect of structural relief off the table, that is what should happen in this case now. Live Nation is ready to make that happen with DOJ and any State Attorney General committed to realistic, common-sense solutions to the remaining issues. We understand that any settlement needs to be meaningful for our venue customers, for artists, and of course for fans. That is what we want, too. Despite the constant criticism we receive from some quarters, Live Nation and Ticketmaster have led the industry in promoting reforms that artists and fans care about. We hope and expect that a resolution of this case will extend those efforts,” he wrote.

Jury selection is scheduled to begin March 2.