Yahoo Finance Column: With Live Nation lawsuit, government signals it's fed up with alleged corporate scofflaws
Is there a better example of arrogant corporate behavior than flouting a government decree — not once but multiple times? That's the question raised by the antitrust lawsuit against the giant concert and ticketing conglomerate Live Nation alleging a raft of monopolistic practices.
The lawsuit, filed Thursday by the Department of Justice, 29 states and the District of Columbia, draws a picture of a company that has ruthlessly exploited its multiple roles as a dominant concert promoter, dominant owner or controller of concert venues, and dominant ticketing manager.
The combination allows Live Nation to exercise "control over which artists perform on which dates at which venues," as well as "how fans are able to purchase tickets ... and what fees those fans will pay," according to the lawsuit.
Venues throughout the United States have come to expect that refusing to contract with Ticketmaster will result in the venue receiving fewer Live Nation concerts or none at all.
US v. Live Nation
The plaintiffs' goal is to break up Live Nation — specifically, to force it to divest Ticketmaster, the ticketing service it merged with in 2010. To the federal officials and the states, the Ticketmaster deal was the original sin allowing Live Nation to build itself a near-monopoly in the live music industry.
This was predictable: Mergers that brought together content producers and content distributors have been a persistent headache for antitrust enforcers — witness the mergers of NBCUniversal with the cable company Comcast and AT&T with Time Warner, the owner of CNN, HBO, Warner Bros. and much more.
Seeing anticompetitive problems on the horizon, the U.S. and 19 states originally sued to block the Live Nation-Ticketmaster deal in 2010. The case was settled with a consent decree in which Live Nation promised not to condition the provision of live shows to venues that chose not to use Ticketmaster as their ticketing agent, or to threaten or retaliate against any venues contracted with a rival ticketer, such as StubHub or SeatGeek.
By 2020, the government said it had compiled evidence that Live Nation had been violating the decree for years by doing exactly what it had promised not to do. "Venues throughout the United States," the government alleged, "have come to expect that refusing to contract with Ticketmaster will result in the venue receiving fewer Live Nation concerts or none at all. ... This is a loss that most venues can ill-afford to risk."
The government sued again, this time settling the case with a deal that extended the initial consent decree by more than five years (to Dec. 31, 2025), imposed an independent monitor on the company, and set a penalty of $1 million for each violation.
Yet here we are again. Since the 2020 settlement, according to the new lawsuit, "Live Nation and Ticketmaster have committed additional, different, and more expansive violations of the antitrust laws." The consent decrees, the lawsuit says, have "failed to restrain Live Nation and Ticketmaster from violating other antitrust laws in increasingly serious ways."
Now the plaintiffs say they're serious. Live Nation has thumbed its nose at the authorities for more than 20 years, the lawsuit says. Live Nation and Ticketmaster got what they wanted in negotiations with the government in 2010 and "promptly consummated" their deal, but they "failed to live up to their end of the bargain." Yes, the government has needed some two decades to decide to take a stand, but it may be progress that's it's finally trying to do so now.
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What does Live Nation have to say about all this? Mostly huffing and puffing. The company attributes the case filing to "intense political pressure on DOJ to file a lawsuit, and a long-term lobbying campaign from rivals trying to limit competition." It calls itself "another casualty of this Administration’s decision to turn over antitrust enforcement to a populist urge that simply rejects how antitrust law works. ... In reality it is just anti-business."
The political pressure, the company says, derives in part from consumer frustration with high ticket prices and extortionate service fees; it warns that its divesting Ticketmaster won't do anything to reduce ticket prices or fees and that Ticketmaster's "commissions" as a share of total prices are much lower than those of other "digital marketplaces" such as Airbnb, Uber and PlayStation.
As far as I'm aware, none of those firms is in the live music business, but Live Nation's whine may be a hint of what its legal defense may be. One key defense in antitrust cases is to try to define the market allegedly being monopolized as broadly as possible, minimizing the defendant's share of that relevant market.
The government plaintiffs say Live Nation controls 60% of concert promotions at major venues, owns or controls 60% of the top amphitheaters in the U.S., and through Ticketmaster controls 80% or more of major venues' primary ticketing for concerts. If Live Nation can guide a judge or jury into thinking of its market as "digital marketplaces" generally, its percentages will look measly.
Live Nation also says that its operating profit margin is only 1.5%, while those of Meta, Alphabet and Apple are all 24% or higher. Of course those companies are all in businesses different from Live Nation's — indeed, different from one another's.
Before going more deeply into the allegations against Live Nation, a few words about Ticketmaster's history. The company's grip on the live ticketing market and its habit of mulcting concertgoers with junk fees have existed for decades, long predating its merger with Live Nation.
In the mid-1990s, Pearl Jam, then the bestselling band in the country, picked a fight with Ticketmaster over fees it charged for the band's shows. Even then the ticket agency was too powerful to beat. The conflict, which was closely followed by my late colleague Chuck Philips, ended with a loss for Pearl Jam, which eventually had to give up its plans to stage a concert tour without Ticketmaster's participation. It resulted in a congressional hearing and an antitrust investigation, but no government action.
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Popular touring artists have regularly groused about Ticketmaster since then. Garth Brooks, Neil Young, R.E.M., the Grateful Dead and Aerosmith were among the acts that supported Pearl Jam in its fight. Most recently, technological glitches connected with Ticketmaster's handling of tickets for Taylor Swift's Eras tour infuriated fans and provoked another congressional hearing; Ticketmaster blamed the fiasco on scalpers and astronomical demand for the tour.
That brings us back to the latest lawsuit. The government plaintiffs paint Live Nation as a corporation so arrogant it would make Shakespeare's Iago blush. The plaintiffs offer chapter and verse of episodes in which Live Nation allegedly secured contracts for Ticketmaster by hinting to venues, if not stating outright, that switching to a rival would mean the loss of Live Nation dates.
The lawsuit quotes a 2019 interview with Variety in which Live Nation Chief Executive Michael Rapino acknowledged that under the 2010 consent decree, "We can’t say to a Ticketmaster venue that says they want to use a different ticketing platform, ‘If you do that, we won’t put shows in your building.’" But he also put into words an implicit threat: "We have to put the show where we make the most economics, and maybe that venue [that wants to use a different ticketing platform] won’t be the best economic place anymore because we don’t hold the revenue."
Rapino also said , " Every now and then one of our competitors runs to the DOJ. ... We get an inquiry from the DOJ ... and we've never found anything wrong." If Live Nation was breaching its consent decree, he added, the company "would have been exposed as being in violation long ago." About three months after he offered that cocksure assurance, the Justice Department filed a second lawsuit alleging that Live Nation had been consistently violating the consent decree.
The most interesting passage in the new lawsuit concerns Live Nation's relationship with its onetime competitor, Oak View Group. That firm was founded in 2015 by Tim Leiweke, a former executive with Anschutz Entertainment Group, and agent and manager Irving Azoff. According to the lawsuit, the group's contracts with leading venues and artists quickly turned into a troubling rival to Live Nation.
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The two companies reached a cooperative arrangement in which Oak View avoided competing with Live Nation for artists and tours. The deal led to a "cozy relationship" in which Oak View has described itself as a "pimp" and a "hammer" for Live Nation.
The lawsuit quotes exchanges in which Leiweke allegedly assured Rapino that "I always protect you on rebates, promotor [sic] position, ticketing." Oak View, the government plaintiffs say, has worked to keep Ticketmaster on contract at its venues and "flip" those using other ticket agents to Ticketmaster over time. (Oak View declined comment.)
Independent venues have learned that they thwart Live Nation at their peril, the governments allege. The plaintiffs have kept the names of complaining venues from their legal filings, arguing that it's necessary "to protect venues" from Live Nation's "retaliatory conduct," an approach one typically sees in mob prosecutions.
A 2021 episode involved the Brooklyn, N.Y., arena Barclays Center, which switched from Ticketmaster to SeatGeek, because the latter offered Barclays a higher percentage share of fees from resold tickets (the venue's name isn't mentioned in the lawsuit, but the facts match the case). A Live Nation executive warned the arena's CEO that the venue "should think about bigger relationship with LN not just who is writing a bigger sponsorship check."
Live Nation then switched several concerts to other venues, the lawsuit states. Within a year, Barclays returned to Ticketmaster.
In another case, Live Nation threatened to deny admission to any customer holding a ticket issued by StubHub for a concert at the Los Angeles Coliseum in 2021, where Ticketmaster claimed to hold an exclusive ticketing contract; hundreds of concertgoers were turned away.
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I couldn't find a reference to any such concert, but the allegation matches an incident that involved a concert by the Black Keys at the Wiltern theater in 2019, when a dispute between Ticketmaster and StubHub and other ticketing services resulted in hundreds of customers being turned away at the door.
That was one case in which Ticketmaster's hard-nosed competitive policies led to a wave of consumer discontent. There's more. In 2022, Ticketmaster inaugurated a policy in which purchased tickets can be transferred only between Ticketmaster account holders.
In other words, members of a party of concertgoers have to all sign up for accounts in other to receive the tickets from the purchaser. That's a boon for Ticketmaster's database. The lawsuit quotes Rapino boasting that the transfer rule allows Live Nation to "not only know the person that bought the ticket, but ... those three people that you are taking to the show."
Live Nation, the plaintiffs note, "can monetize this unique trove of data in its various businesses to both increase its bottom line and further entrench its positions across the live entertainment industry."
Can anything stop Live Nation from continuing these practices? Splitting off Ticketmaster from the rest of Live Nation might be relatively easy, since the original merger was approved based on conditions that the government says have been relentlessly violated.
Theoretically, cleaving the company's interest in promoting concerts and filling venues from its interest in extracting the maximum in junk fees from powerless customers would do much to foster competition in the ticketing business.
But it's proper to note that there are multiple businesses that position themselves as stakeholders in live entertainment. Arena, amphitheater and stadium operators might not care about junk fees charged to patrons, as long as they get a cut of the action. Moreover, customers are always going to pay through the nose for tickets to high-profile, massively popular acts like Taylor Swift.
It may be true, as Live Nation says, that this lawsuit may not bring prices down even if it's successful. In the entertainment industry, there's always someone looking to take a cut of your dollar.
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This story originally appeared in Los Angeles Times.
