Live Nation Asks Judge to Toss Amphitheater Antitrust Charges
Attorneys for Live Nation want the judge presiding over the company’s historic antitrust case to dismiss the Department of Justice’s allegations that the concert promoter uses illegal tying arrangements to operate its amphitheaters, arguing it has no obligation to allow rival promoters to use the venues it owns or manages.
Live Nation’s co-lead trial counsel Alfred C. Pfeiffer of Latham Watkins argued in a July 17 letter to Judge Arun Subramanian that this practice, described as a “refusal to deal,” is common in the concert business and protected by Supreme Court precedent.
“As a general matter, the Sherman Act does not restrict the long recognized right of a [defendant] engaged in an entirely private business, freely to exercise his own independent discretion as to parties with whom he will deal,” Pfeiffer writes, quoting a 2004 ruling in a case brought by Verizon.
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Accordingly, Live Nation has no obligation “to extend a helping hand to new entrants” or help its rivals “survive or expand,” Pfeiffer notes, adding, “the unimpeachable freedom to refuse to deal with rivals (in all but the rarest circumstances, which are not even arguably present in this case) rests on bedrock antitrust principles.”
In the government’s 128-page complaint against Live Nation, attorneys with the DOJ’s antitrust division allege that Live Nation illegally “conditions artists’ access” to the 56 outdoor amphitheaters the company controls by forcing artists to chose “Live Nation as the promoter for concerts at its venues.”
Pfeiffer’s letter was born out of a June 27 pre-trial hearing in which Judge Subramanian invited Live Nation’s attorneys to file a letter to the court identifying issues that Live Nation had with the DOJ complaint “as opposed to advancing those arguments after” an amended complaint is filed,” Pfeiffer wrote. “Your Honor advised that doing so would provide Defendants ‘a good argument that those claims should be dismissed with prejudice’” if the government cannot overcome Live Nation’s arguments on a motion to dismiss.
Live Nation lawyers also want the antitrust claims filed by 30 states’ attorneys general alongside the DOJ dismissed, including 22 separate claims under their own state laws.
“These claims are threadbare and conclusory” Pfeiffer writes, noting that many of the state AGs merely repeat the DOJ’s allegations without specifically alleging “the elements of each state-law claim” or citing “what conduct allegedly violates the state laws in question.”
Pfeiffer also criticized the states for failing to detail their damage claims and argued that many of the state objections were barred by different state’s statute of limitations.
The DOJ has until Sept. 18 to respond to Live Nation’s letter.
