Aura Kasih
Following a period of considerable upheaval stemming from the Justice Department’s mid-trial settlement with Live Nation-Ticketmaster, the high-stakes antitrust trial has recommenced with a determined coalition of states now at the forefront, steering the legal proceedings with a strategic and focused approach.
The initial disruption cast a shadow over the trial’s progression. The consortium of state attorneys general, initially seeking a mistrial to recalibrate their strategy and mitigate potential jury prejudice from the abrupt shift in prosecution, found themselves in a precarious position. Facing a seemingly imminent denial of their mistrial motion by an evidently impatient Judge Arun Subramanian, the states executed a swift pivot. Securing the crucial cooperation of the Justice Department’s expert witness and rapidly assembling their own legal talent, they strategically withdrew their request for a new trial. This decisive maneuver allowed the proceedings to resume from a point closely mirroring their trajectory before the settlement, with the focus now squarely on the plaintiffs’ narrative of Live Nation’s alleged monopolistic tactics, particularly its deployment of a "velvet hammer" against competitors.
Judge Subramanian, addressing the jury after their recess, underscored the necessity of maintaining impartiality. He reminded them of their oath to avoid any external information concerning the case, a standard instruction that the jurors affirmed they had followed. The judge reiterated that while the federal government and a select group of states had resolved their claims, the remaining states were committed to pursuing their allegations to a verdict. He emphasized that no inferences should be drawn from the withdrawal of these parties from the trial.
The transition in legal representation was palpable. The departure of the Justice Department’s litigators paved the way for a new prosecutorial team, co-led by Jonathan Hatch, representing the New York Attorney General’s office, and Jeffrey Kessler, a prominent attorney from Winston & Strawn. Kessler’s considerable experience in antitrust litigation, notably his representation of college athletes in the landmark Supreme Court case against the NCAA concerning athlete compensation, lends significant weight to the states’ case.
The renewed examination of Jay Marciano, the Chief Operating Officer of AEG, a formidable rival to Live Nation across various segments of the live entertainment industry, formed a key part of Monday’s proceedings. While Hatch’s questioning served to refresh the jury’s recollection of Marciano’s earlier testimony, the examination proceeded with a measured and methodical pace. Marciano provided insights into ticketing models prevalent in European markets, where a collaborative approach among multiple ticketing service providers at venues is common, a stark contrast to the prevailing practice in the United States, characterized by exclusive ticketing contracts, frequently with Ticketmaster.
During his cross-examination, Marciano addressed a pivotal incident previously presented to the jury: a recorded conversation between the then-CEO of Barclays Center and Live Nation CEO Michael Rapino. This exchange, occurring after Barclays Center’s attempt to disengage from Ticketmaster, saw Rapino suggest that severing ties would complicate the arena’s ability to secure concerts, especially with the imminent opening of the new UBS Arena. While Barclays Center interpreted this as a punitive measure aimed at safeguarding Ticketmaster’s market position, Marciano offered a pragmatic perspective. He affirmed that leveraging competition between venues is a standard practice for concert promoters seeking more favorable terms, and that the introduction of a new venue like UBS Arena would indeed possess the capacity to divert artists from established venues like Barclays.
Further allegations of anticompetitive behavior were explored through the testimony of Robert Roux, Live Nation’s president of U.S. concerts. The states’ legal team, spearheaded by attorney Josh Hafenbrack, presented evidence, including internal Live Nation business presentations, suggesting that the company has strategically leveraged its extensive control over U.S. amphitheaters to solidify its market dominance. These presentations allegedly demonstrated significant gains in controlling four of the top five U.S. amphitheaters by ticket sales between 2016 and the present. A 2018 presentation, for instance, reportedly highlighted a substantial number of the world’s top 100 amphitheaters, with a significant majority marked in green, indicating venues owned, operated, or exclusively booked by Live Nation at the time. Roux’s testimony confirmed that this portfolio has continued to expand.
Live Nation maintains that its business practices are not anticompetitive and contends that the states overlook the competitive landscape involving other types of venues that vie for the same musical acts. However, evidence presented in court, including a 2015 email from Roux, suggests a different internal perspective. In this email, Roux reportedly noted that many artists who are not considered superstars often express a desire to perform in amphitheaters, a significant number of which are allegedly controlled or exclusively booked by Live Nation. He further observed that in such scenarios, there was "room for tighter negotiations and deals," implying a strategic advantage in securing favorable terms due to market control.
The internal communications of Live Nation reveal a calculated approach to competitive dynamics, even when contemplating potentially lucrative partnerships. An exchange from 2018, involving Michael Rapino, raises questions about the company’s rationale for not awarding shows to Red Mountain Entertainment, a Southern promoter that Live Nation was considering acquiring. Roux’s response at the time, reportedly stating that the message to Red Mountain should be, "Either we are together or we are competitors," has been characterized as the deployment of a "velvet hammer." On the stand, Roux sought to contextualize this communication, asserting it was intended to be firm rather than antagonistic, aiming to convey a clear strategic direction. In a related discussion concerning Red Mountain, Roux also cautioned against complacency and the potential for "small guys encroach[ing] from the edges," a comment he later described as a general observation rather than a specific reference to the promoter. Live Nation subsequently acquired Red Mountain Entertainment in 2018.
Further illustrating this strategic approach, an internal directive from Rapino in 2020 advised against allowing Radio Disney and concert promoter Superfly access to a Live Nation venue, despite an offer that promised substantial profits for Live Nation through rental fees. This decision was reportedly made despite an executive acknowledging the financial benefits, citing concerns about granting third-party promoters access to the venue.
Concluding his testimony, Roux provided financial data indicating a substantial increase in Live Nation’s per-fan profitability in recent years. Profitability in large amphitheaters, a central focus of the trial, reportedly outpaced other venue categories between 2019 and 2024. Before accounting for certain operational costs, the company generated an estimated $386 million in profit from large amphitheaters in 2024, nearly tripling the figure from 2019.
Despite the initial delay caused by the Justice Department’s settlement and the subsequent strategic adjustments by the states’ legal team, the trial’s progression on Monday showed little discernible difference in the flow of proceedings or the operational style of the new legal representatives compared to the trial’s opening week. The case is still projected to continue for several more weeks. However, both sides have indicated efforts to streamline their witness lists, a measure aimed at compensating for the lost time. Anticipation is building towards the end of the current week, as one of the trial’s most prominent figures, Live Nation’s CEO, is expected to take the witness stand. This testimony is poised to be a critical juncture in the states’ pursuit of their antitrust claims.
The strategic recalibration by the state coalition signals a robust commitment to prosecuting their case. Their ability to absorb the departure of the federal prosecution and seamlessly integrate new legal talent, while also retaining essential expert testimony, demonstrates a formidable legal strategy. The "velvet hammer" metaphor, as articulated through internal communications, provides a compelling narrative thread for the jury, suggesting a pattern of leveraging market power to suppress competition. The financial data presented, particularly the escalating profitability in amphitheater operations, serves as quantifiable evidence supporting the states’ claims of monopolistic advantage. As the trial progresses, the focus will undoubtedly shift to the defendant’s counterarguments and the eventual determination of whether Live Nation’s practices have indeed stifled competition and harmed consumers in the live entertainment market. The implications of this trial extend beyond the immediate parties, potentially shaping the future competitive landscape of the music and live event industry.
Lisa Mariana
