The Live Nation trial restarts with a ‘velvet hammer’
After a chaotic week following the Justice Department’s mid-trial settlement with Live Nation-Ticketmaster, the antitrust trial resumed surprisingly well on Monday — this time, with dozens of states fighting the case.
This is not the outcome originally desired by States. Concerned that they would not be able to effectively restart the case and fearing that the jury would be prejudiced by the shuffle, they requested a mistrial, which would have restarted the court battle at an unknown later date. But an irritated Judge Arun Subramanian seemed likely to deny the request, and once the states figured out how to retain the DOJ’s expert witness and were able to hire him quickly, they withdrew their motion for a mistrial. After the new faces were introduced, the trial resumed pretty much where it left off more than a week ago, with testimony including how Live Nation deployed its “velvet hammer” against its rivals.
Subramanian welcomed jurors back from their “spring break” and asked if they had read or heard any news about the case while they were away, which is prohibited by jury instructions. They either shook their heads or remained silent. He reminded jurors that the United States had resolved its claims, as had a handful of states, but that the rest were in the process of going to trial. Jurors should draw no conclusions from the fact that those parties are no longer involved in the case, he said.
With the DOJ absent, the lawyers who interviewed the original witnesses are gone, replaced by a new team co-led by Jonathan Hatch, an attorney in the AG’s New York office, and Jeffrey Kessler of Winston & Strawn, who represented college athletes in the Supreme Court’s landmark antitrust case against the NCAA over compensation.
The states’ lawyers questioned Jay Marciano, the COO of AEG, a competitor to Live Nation on several fronts. Although Hatch refreshed jurors on parts of Marciano’s earlier testimony, it was otherwise a fairly standard examination. Marciano testified about the ticketing models he prefers in Europe, where multiple ticketing services often operate at a venue, unlike the norm in the United States where venues tend to accept exclusive ticketing contracts, often from Ticketmaster.
Under cross-examination, Marciano spoke about an incident the jury heard about early in the trial: a call between then-CEO of the Barclays Center and Live Nation CEO Michael Rapino, who responded to an attempted abandonment by Ticketmaster by saying it would be harder for the arena to get concerts with the new UBS Arena nearby. While Barclays interpreted this as a threat to protect Ticketmaster, Marciano claimed that it was common as a concert promoter to play against each other for more favorable terms, and that UBS Arena would be attracting artists away from Barclays as a new venue in town.
Live Nation’s president of U.S. concerts, Robert Roux, responded to another allegation: Live Nation uses its broad control over U.S. amphitheaters to maintain its monopoly power, leaving no real options for artists seeking to play large outdoor venues. Through Live Nation’s own sales presentations, plaintiff’s attorney Josh Hafenbrack demonstrated that the company has made great strides in gaining power over four of the five largest amphitheaters in the United States in terms of ticket sales between 2016 and the present. A 2018 presentation showed a heavily highlighted list of the world’s top 100 amps, with the green highlights representing the 62 venues owned, operated, or exclusively booked by Live Nation at the time. Since then, Roux confirmed, the company has added several more to that list.
Live Nation denies acting in an anti-competitive manner and says states are ignoring other types of venues that are competing for the same shows. But Roux wrote in a 2015 email that many non-superstar artists come wanting to play amphitheaters — many of which, evidence presented in court suggests, are controlled or exclusively booked by Live Nation. He also wrote that in these cases there was “room for negotiations and closer agreements.”
“Either we are together or we are competitors”
Other emails described how Live Nation viewed its competitors when considering otherwise lucrative deals. In a 2018 email exchange, Rapino questioned why Live Nation should offer shows to a Southern promoter it was considering acquiring, Red Mountain Entertainment, before actually owning it. Roux wrote at the time that the message to Red Mountain should be: “We are either together or we are competitors.” He described this approach as a “velvet hammer.” On the witness stand, Roux said the message was not intended to “antagonize” the promoter, but to be firm and send a clear message. In another exchange mentioning Red Mountain, Roux wrote that Live Nation shouldn’t become “complacent” and “let the little guys encroach from the edges.” Roux said the comment was general and not specific to the developer. Live Nation acquired Red Mountain in 2018.
In 2020, Rapino advised Roux against letting Radio Disney and concert promoter Superfly into a Live Nation venue, even after offering a deal that would net Live Nation at least $400,000 in profit for renting the amp. One executive had expressed concern about allowing a third-party promoter to participate in the amp, even though “the money is great.”
Finally, Roux testified that Live Nation’s profits per fan have multiplied in recent years, with the profitability of large amps, a key market in the deal, increasing more than that of other venue categories between 2019 and 2024. Before some costs are taken into account, the company made $386 million in profit from large amps in 2024, nearly triple the amount it made in that segment in 2019.
Aside from the delay in the case while the States team prepared its next moves in the absence of the DOJ, there was no notable change in the course of the trial and the way the new litigants operated, compared to the first week of the trial. The case is expected to last several more weeks, although both sides said they have worked to reduce their witness lists to make up for lost time. Late this week, one of the trial’s most high-profile witnesses is expected to take the stand: Live Nation’s CEO.
