States’ anti-monopoly case against Live Nation continues Monday

The Live Nation-Ticketmaster trial is back on. Dozens of states are expected to move forward with their claims against the company’s alleged concert industry monopoly beginning on Monday, following a brief hearing on Friday.

The Justice Department and a handful of states have accepted settlements with the company, but the majority of the 40 state and district attorney general plaintiffs — as of now — are continuing their fight in court. The states that are pressing forward withdrew their motion for a mistrial, filed after the DOJ announced its settlement in court Monday, and showed up with new outside counsel to lead their trial team in the absence of the federal litigators. The judge also said that jurors will be allowed to see internal chats between Live Nation employees who bragged about how they “gouge” fans, overruling opposition from the company.

In a hearing Friday that lasted less than an hour, Judge Arun Subramanian — visibly cheerier than he was earlier this week when he scolded attorneys for failing to inform him of an impending settlement earlier — sorted through trial logistics and issued orders on exhibits. In order to take over the case, the now-departed DOJ trial team continued to work to transfer information the proceeding states would need at trial, the states’ co-lead attorney Jonathan Hatch said. But there are still some things left in the DOJ database that haven’t yet transferred, he said. At the judge’s request, the DOJ agreed to ensure that access wasn’t cut off until the states and their counsel got everything they needed.

Arkansas, Iowa, Mississippi, Nebraska, Oklahoma, and South Dakota have all either signed an agreement similar to the DOJ’s with Live Nation, or are close to doing so. South Carolina is continuing to negotiate with the company, and may continue with the litigation unless the state reaches an agreement on its monetary demands before then. An attorney speaking on behalf of these states said South Carolina had reached an agreement in principle on updated injunctive terms of the settlement, though it’s not clear what those are. That leaves more than 30 state AGs still involved in the litigation, unless things change before Monday.

The trial is expected to pick up with the testimony of AEG COO Jay Marciano, who was the last witness to be questioned by a DOJ trial lawyer in the case. Marciano was only partway through his testimony when court adjourned for the day, so the states will likely need to refresh the jurors’ memories, after their new trial team introduces themselves. AEG is a competitor to Live Nation-Ticketmaster and a similarly integrated ticketing and live events promotion business.

The judge also allowed several exhibits containing Slack messages between Live Nation employees to be shown to the jury, after the company sought to exclude them. The messages came to light this week after the judge unsealed them following requests from a group of media outlets.

The messages from 2022 included two then-regional directors for ticketing at the company’s amphitheatres boasting about how they “gouge” fans with ancillary costs, like for parking or VIP access, and ridiculing fans as “stupid” and saying Live Nation was “robbing them blind.” Live Nation spokesperson Emily Wofford described the exchange as one from a “junior staffer to a friend” and said it “absolutely does not reflect our values or how we operate.” In a brief opposing the motion to exclude the chats, however, the plaintiffs say these “junior” employees now hold important positions at the company: one is the head of ticketing for the arm of Live Nation that operates its amphitheatres, and the other is a senior director of ticketing for Live Nation’s Capital Region.

“Because this was a private Slack message, leadership learned of this when the public did, and will be looking into the matter promptly,” Wofford said in a statement. “Our business only works when fans have great experiences, which is why we’ve capped amphitheater venue fees at 15% and have invested $1 billion in the last 18 months into U.S. venues and fan amenities.”

Live Nation had sought to exclude the exhibits from being shown to the jury, with its attorneys arguing they were simply “informal Slack messages” without relevance to the case. Attorneys for the government argued the messages represent “candid, internal messages” that rebut the company’s claim that it invests in amphitheaters to give fans and artists a great choice of where to see a concert. The judge agreed that Live Nation had “opened the door” to this kind of evidence by bringing up the quality of fan experiences at its venues in its opening statement.

In any event, the show will go on beginning Monday morning.