e Antitrust Case Against Live Nation
Entertainment
Michael A. Carrier*
A
One of many “Ticketmaster horror stories” is the ticketing asco of the
2022 Taylor Swift tour, with tickets removed from baskets and fans kicked
out of the queue, unable to buy tickets. Live Nation Entertainment, the
combination of promoter Live Nation and ticketing company Ticketmaster,
blamed unexpected demand.
But while the company had an incentive to cast blame elsewhere, it also
had no reason to care about quality. As a monopolist, it was not subject to a
competitive marketplace. It could oer a bad product and not worry about
customers eeing from bots and cyberattacks. Ticketmaster has had control
over the ticketing market for decades. And after its merger with Live Nation,
the top U.S. entertainment provider, in 2010, its power expanded into pro-
motion, where it has relationships with many of the top artists. Together, the
combined company appears to have engaged in multiple antitrust violations.
For starters, Ticketmaster harmed ticketing rivals by locking venues into
multiyear contracts to take its ticketing services. is is “exclusive dealing.”
For any venues not part of these arrangements, the company threatened:
“You want our artist? You must take our tickets.” is is a classic “tying” viola-
tion. It engaged in deception when it used “bait-and-switch tactics” in selling
tickets to fans that led to a settlement with the Federal Trade Commission
(FTC). Putting together all of these—and other—actions presents an overall
course of conduct that constitutes monopolization.
* Board of Governors Professor, Rutgers Law School. I would like to thank Bran-
don Broukhim and Mason Mandell for outstanding research assistance and Jon Baker,
Krista Brown, Dean Budnick, Steve Calkins, Kevin Erickson, Herb Hovenkamp, and
Doug Melamed for very helpful comments. Copyright © Michael A. Carrier 2024.
2 Harvard Journal of Sports & Entertainment Law / Vol. 15
e typical remedies for antitrust violations lean toward the modest
rather than aggressive side. is case is dierent. e 2010 merger of Tick-
etmaster and Live Nation required the company to not force venues wishing
to book Live Nation artists to use Ticketmaster’s ticketing. But there were so
many breaches that the consent decree was extended. Given its numerous bla-
tant violations, the company cannot be trusted to undertake actions a court
might compel. For that reason, a breakup of Ticketmaster and Live Nation
should be the preferred remedy.
Taylor Swift fans rightly were upset when Ticketmaster bungled the roll-
out of tickets for her 2022 tour. We should all be upset. is Article highlights
the strong antitrust case against the company and remedy that can x this.
I
In November 2022, millions of Taylor Swift fans were angry. For the
rst time since 2018, Swift was going on tour. Demand was through the roof.
But the process of getting tickets was a disaster. Some fans waited for hours
in a queue before being kicked out.
1
Others made “multiple failed attempts”
to buy tickets that “had been removed from their basket without adequate
time to check out.”
2
And some “Veried Fans” were waitlisted, unable to
buy tickets until the general public sale. Adding insult to injury, this sale was
canceled.
3
Live Nation Entertainment, the combination of promoter Live Nation
and ticketing company Ticketmaster, blamed unexpected demand. President
Joe Berchtold said “industrial-scale ticket scalping” from automated “bots”
was “the real problem, with a $5 billion market in secondary sales standing
between artists and fans.”
4
Chairman of the Board Greg Maei explained that
1
Chris Willman & E.J. Panaligan, Taylor Swift Says Ticketmaster Fiasco “Pisses
Me O”: “It’s Excruciating for Me to Just Watch Mistakes Happen,” V (Nov. 18,
2022), https://variety.com/2022/music/news/taylor-swift-addresses-eras-tour-ticket-
master-asco-1235436036/ [https://perma.cc/6Q3H-AJEJ].
2
Ashley Cullins, Taylor Swift “Ticket Sale Disaster” Sparks Suit Against Ticketmaster,
Live Nation, H R (Dec. 5, 2022), https://www.holly wood reporter.
com/news/music-news/taylor-swift-fans-lawsuit-ticketmaster-live-nation-eras-
tour-1235275035/ [https://perma.cc/2TRS-3ZP2].
3
Willman & Panaligan, supra note 1.
4
Anna Edgerton & Leah Nylen, Senators Fault Ticketmaster “Monopoly” for
Taylor Swift Debacle, B (Jan. 24, 2023), https://www.bloomberg.com/
news/articles/2023-01-24/senators-blame-ticketmaster-monopoly-for-taylor-swift-
debacle?embedded-checkout=true [https://perma.cc/5THL-FBUW?type=standard].
2024 / e Antitrust Case Against Live Nation Entertainment 3
“[i]t’s a function of Taylor Swift,” as “the site was supposed to open up for
1.5 million veried Taylor Swift fans” but “had 14 million people hit the site,
including bots, which are not supposed to be there.”
5
And former Ticketmas-
ter CEO Fred Rosen had “no sympathy for people whining about high ticket
prices” because “[t]he public brought all this on itself.”
6
e company had every reason to cast blame elsewhere. But it also had
no reason to care about quality. As a monopolist, it was not subject to a
competitive marketplace.
7
It could oer a bad product and not worry about
customers eeing from bots and cyberattacks. In fact, it could continue rais-
ing prices.
Taylor Swift asked Ticketmaster “multiple times” if it “could handle this
kind of demand” and was “assured” it could.
8
Obviously, it could not (or
chose not to). Swift lamented that even the more than two million people
who were able to obtain tickets felt like “they went through several bear
attacks to get them.”
9
Such a asco is not unique to this event. Many fans have “a Ticketmaster
horror story” of tickets “disappearing” in the checkout cart or “prices jumping
due to ‘dynamic pricing’ or ‘unapparent fees’ attached to tickets at the end of
the purchasing process.”
10
ese long-known quality concerns, however, have
See also id. (“Industrial scalpers breaking the law using bots and cyberattacks to try to
unfairly gain tickets contributes to an awful consumer experience.”).
5
Sarah Whitten, Ticketmaster’s Largest Shareholder Blames Massive Demand—
including from Bots—for Taylor Swift Ticket Fiasco, CNBC (Nov. 17, 2022), https://
www.cnbc.com/2022/11/17/taylor-swift-ticketmaster-asco-due-to-demand-bots-
liberty-media-ceo-says.html [https://perma.cc/DJ8Y-527H].
6
August Brown, How Ticketmaster Became the Most Hated Name in Music,
L.A. T (Jan. 23, 2023), https://www.latimes.com/entertainment-arts/music/
story/2023-01-23/ticketmaster-live-nation-taylor-swift-pearl-jam [https://perma.
cc/4CVR-LH75].
7
See Dave Brooks, Live Nation’s Michael Rapino Admits Some Ticket Fees “Not
Defendable,” B (Oct. 13, 2017), https://www.billboard.com/pro/michael-
rapino-deposition-ticketmaster-fees-songkick-shuts-down/ [https://perma.cc/54JC-
LQHY] (Live Nation CEO admits that some Ticketmaster fees are “not defendable”).
8
David McCabe & Ben Sisario, Justice Dept. Is Said to Investigate Ticketmaster’s Par-
ent Company, N.Y. T (Nov. 18, 2022), https://www.nytimes.com/2022/11/18/
technology/live-nation-ticketmaster-investigation-taylor-swift.html [https://perma.
cc/ZKX3-TQST].
9
Rebecca Klar, How a Taylor Swift Tour rust Antitrust Concerns Into the Spotlight,
T H (Nov. 19, 2022), https://thehill.com/policy/technology/3742563-how-a-
taylor-swift-tour-thrust-antitrust-concerns-into-the-spotlight/ [https://perma.cc/
NVX6-5N4K].
10
Id.
4 Harvard Journal of Sports & Entertainment Law / Vol. 15
not resulted in fans using alternative options. As Swift explained: “I didn’t
have many alternatives,” as “I had to play these venues in big cities, and that’s
where Ticketmaster’s market power manifests.”
11
Ticketmaster has had control over the ticketing market for decades. And
after its merger with Live Nation, the top U.S. entertainment provider, in
2010, its power expanded into promotion, where it has relationships with
many of the top artists. Together, the combined company appears to have
engaged in multiple antitrust violations.
For starters, Ticketmaster harmed ticketing rivals by locking venues into
multiyear contracts to take its ticketing services. is is “exclusive dealing.”
12
For any venues not part of these arrangements, the company threatened:
“You want our artist? You must take our tickets.” is is a classic “tying”
violation.
13
It engaged in deception when it used “bait-and-switch tactics” in selling
tickets to fans that led to a settlement with the Federal Trade Commission
(FTC).
14
Putting together all of these—and other—actions presents an overall
course of conduct that constitutes monopolization.
15
Typical remedies for antitrust violations lean toward the modest rather
than aggressive side, such as an injunction to stop engaging in particular con-
duct like tying or exclusive dealing. is case is dierent. e reason is that
the more modest approach already has been tried. e U.S. Department of
Justice (DOJ) allowed the 2010 merger of Ticketmaster and Live Nation to
proceed on the condition that the company do certain things, like not forcing
venues wishing to book Live Nation artists to use Ticketmaster’s ticketing. In
the vast majority of these “consent decrees,” the parties follow the terms. In
this case, however, there were so many breaches that the consent decree was
extended, which almost never happens.
16
11
Brown, supra note 6 (quoting Swift).
12
See infra Part VI.
13
See infra Part VII.
14
See infra notes 401–407 and accompanying text.
15
See infra Part IX (discussing (1) criminal misappropriation harming ticketing
rivals, (2) radius clauses injuring promoters, and (3) tying promotion to venues, and
(4) leveraging various markets to control arenas harming other promoters and non-
Ticketmaster-aliated venues).
16
See Press Release, U.S. Dep’t of Justice, Justice Department Will Move to Signif-
icantly Modify and Extend Consent Decree with Live Nation/Ticketmaster (Dec. 19,
2019), https://www.justice.gov/opa/pr/justice-department-will-move-signicantly-
modify-and-extend-consent-decree-live [https://perma.cc/664V-XTGB] (extension
2024 / e Antitrust Case Against Live Nation Entertainment 5
Given its numerous blatant infractions, the company cannot be trusted
to undertake actions a court might compel as a remedy for antitrust liability.
For that reason and because a structural remedy is more promising in address-
ing the core harms threatened by the company,
17
a breakup of Ticketmaster
and Live Nation should be the preferred remedy. Additional remedies could
require the company to sell venues and end exclusive dealing arrangements,
impose injunctive relief against deception, and address behavior that is part
of the overall course of conduct.
is Article rst traces the history of Ticketmaster and Live Nation. It
next oers an overview of the relevant antitrust framework and explores the
company’s power in several markets. It then examines harm to various parties,
in particular, consumers, and explores the company’s inconsistent approach
to secondary ticketing. e succeeding four parts then analyze antitrust theo-
ries of exclusive contracts with venues, tying promotion and tickets, decep-
tion, and an overall course of conduct. e Article concludes by discussing
remedies.
I. H
Before beginning the antitrust analysis of a case that could be brought
against Live Nation Entertainment, some stage-setting is in order. is Part
oers a quick primer on the relevant markets and then provides background
on two of the company’s divisions, the ones central to this Article: Ticketmas-
ter and Live Nation.
18
A. Relevant Markets
As Live Nation Entertainment has explained, “[t]he live music industry
includes concert promotion and/or production of music events or tours.”
19
To
of decree was “the most signicant enforcement action of an existing antitrust decree
by the Department [of Justice] in 20 years”).
17
See infra notes 499–501 and accompanying text.
18
As mentioned above, see supra note 4, the overall company, Live Nation Enter-
tainment, consists of divisions including ticketing-based Ticketmaster and promo-
tion-based Live Nation.
19
Live Nation Entertainment, Inc., Annual Report (Form 10-K), at 4 (Dec. 31,
2022), https://investors.livenationentertainment.com/sec-lings/annual-reports/
content/0001335258-23-000014/0001335258-23-000014.pdf [https://perma.cc/
J3XU-SJWF] [hereinafter Live Nation 10-K].
6 Harvard Journal of Sports & Entertainment Law / Vol. 15
go on tour or set up live music events, “booking agents contract with artists
to represent them” and the agents work with promoters to arrange events.
20
Promoters, who “earn revenue primarily from the sale of tickets,... market
events, sell tickets, rent or otherwise provide venues[,] and arrange for local
production services, such as stages and equipment.”
21
Venues are “the physical locations where concerts occur.”
22
Venue opera-
tors “typically contract with promoters to have their venues rented for specic
events on specic dates,” and provide “services such as concessions, parking,
security, ushering and ticket scanning at the gate.”
23
Ticketing services “generally refers to the sale of tickets primarily
through online and mobile channels” and “also includes sales through phone,
outlet and box oce channels.”
24
Ticketing companies “will contract with
venues and/or promoters to sell tickets to events over a period of time, gener-
ally three to ve years.”
25
Live Nation Entertainment has power in all of these markets.
26
But that
was not always the case.
B. Ticketmaster’s Growth
When Ticketmaster entered the market in the late 1970s, the industry
leader was Ticketron, whose $100 million in sales dwarfed Ticketmaster’s
$1 million.
27
In 1982, Fred Rosen took over leadership of Ticketmaster. Rosen
believed that “the real money was in concerts, not sporting events” because of
the “fanatic followers willing to shell out big bucks simply for the chance to
attend ... one-time events.”
28
Rosen increased the then-$1 service charge and shared it with “appre-
ciative promoters and venue managers.”
29
Ticketmaster’s deals “represented
20
Id.
21
Id.
22
Competitive Impact Statement at 3, U.S. v. Ticketmaster Entertainment, Inc.,
No. 1:10-cv-00139 (D.D.C. Jan. 25, 2010).
23
Live Nation 10-K, supra note 19, at 4.
24
Id.
25
Id.
26
See infra Part III. e company also has power in artist management. See infra
notes 104–105 and accompanying text.
27
Eric Boehlert, Ticketmaster Is Under Fire: How David Became the Industry’s
Goliath, 106 B 1, 97 ().
28
Id.
29
Id.
2024 / e Antitrust Case Against Live Nation Entertainment 7
found money, a net of several hundred thousand dollars a year” for major-
market arenas, and also helped promoters, who were “hurt at the time by the
increasingly large guarantees demanded by artists.”
30
In oering “the revenue
share and the mechanisms to earn it, Ticketmaster required full inventory of
all tickets sold to the public and an exclusive agreement to provide ticketing
services for each client.”
31
Rosen would tell the venues:
Right now you have a cost center, it’s called your box oce. You pay for the
equipment and you have to pay for the labor to sell the tickets. I’m going to
give you the equipment for free. I’m going to equip your entire box oce
with terminals. I’m going to teach your people how to sell tickets over those
terminals, and I’m going to support those people. What I’m going to ask
you to do is close down the rst day of sale on concerts and let me sell those
tickets through my outlets. So now you don’t even have to pay the labor on
the rst day of sale. But if that’s not enough, I’m going to give you a piece of
every ticket I sell. So I’ve just turned your cost center into a prot center.
32
at was not all. e venue “would get an advance on future sales ...
and, occasionally, a signing bonus.”
33
And “[o]nce the advance was recouped,
the buildings and promoters would get annual rebates as part of a revenue
share of the service fees with Ticketmaster.”
34
e company’s sharing of the
spoils with promoters and venues aligned the incentives of each to benet
from higher fees. Even better for the promoters and venues (though not the
fans), Ticketmaster recognized that “[b]uying a ticket is not a real enjoy-
able process” and agreed to “take the bruises from people who don’t like the
process.”
35
30
Id.
31
D B & J B, T M: T R C
I H P G S 72 (2012). See also id. (“Everything
was exclusive from day one in every building.”).
32
Id. at 75.
33
Id. at 116–17. See, e.g., Fred Goodman, e Price Is Not Right, R S
(Oct. 6, 1994), https://www.rollingstone.com/music/music-news/the-price-is-
not-right-183787/ [https://perma.cc/L52P-F5ND] (noting that Ticketmaster “has
become a de facto bank,” with, for example, a “ve-year exclusive deal with the New
Jersey Sports and Exposition authority guarantee[ing] the Meadowlands venue about
$6.5 million—including $1 million for signing”).
34
B & B, supra note 31, at 117.
35
Id. at 73 (“Part of the unspoken agreement, or maybe even spoken, was that we
will be the face of ticketing.”); id. (Ticketmaster’s senior vice president for new media
stated that in return for the exclusive contracts, the company “agreed to take it on the
chin”); Jem Aswad, John Oliver Blasts Ticketmaster in Scathing Broadside Against Ticket
8 Harvard Journal of Sports & Entertainment Law / Vol. 15
C.
T
icketmaster and Live Nation
Ticketmaster’s exclusive contracts with venues allowed it to amass sig-
nicant power in ticketing.
36
From roughly 1990 until 2009, as the DOJ
explained, Ticketmaster “dominated the market for primary ticketing services
to major [U.S.] concert venues” with more than an 80 percent share of the
market.
37
By 2008, however, the company’s “longstanding dominance faced
a major threat.”
38
Live Nation was “the largest concert promoter in the United States,
... promoting shows representing 33%” of the revenues at “major concert
venues”
39
and owning or operating roughly 70 of these venues.
40
From 1998
to 2007, Live Nation was in an exclusive arrangement to use Ticketmaster for
ticketing at its venues.
41
Perhaps seeing “the potential to compete directly and
cut out Ticketmaster,” Live Nation ended that arrangement,
42
which likely
played a role in Ticketmaster’s prots falling 78 percent.
43
Prices, Fees, Secondary Market, V (Mar. 14, 2022), https://variety.com/2022/
music/news/john-oliver-ticketmaster-prices-fees-secondary-market-1235204410
[https://perma.cc/MY3Q-BMKM] (video at 5:36 to 5:54) (Ticketmaster “was set up
as a system where they took the heat for everybody. Within that service charge are the
credit card fees, the rebates to the buildings, rebates sometimes to artists, sometimes
rebates to promoters. Ticketmaster is like the IRS—we deliver bad news.”).
36
Ticketmaster also expanded its universe in 2008 by acquiring artist manage-
ment company Front Line. Phil Gallo, Ticketmaster Takes Over Front Line, V
(Oct. 23, 2008), https://variety.com/2008/music/markets-festivals/ticketmaster-
takes-over-front-line-111799450 [https://perma.cc/E2TC-4BLU].
37
Competitive Impact Statement, supra note 22, at 8. See infra note 78 and
accompanying text.
38
Id. at 10.
39
Id. at 4.
40
Id. at 5.
41
Maureen Tkacik & Krista Brown, Ticketmaster’s Dark History, A. P
(Dec. 21, 2022), https://prospect.org/power/ticketmasters-dark-history/ [https://
perma.cc/EK7L-3D6X] (referring to Live Nation’s predecessor, SFX, using its “rea-
sonable best eorts” to “exclusively employ Ticketmaster in every venue that hosted
one of its events”); Amended Complaint, United States v. Ticketmaster Entertain-
ment, Inc. ¶¶ 24–25 (D.D.C. Jan. 28, 2010).
42
Krista Brown, Better than Revenge: Swifties Help Expose Ticketmaster’s Monopoly,
R S (Nov. 23, 2022), https://www.rollingstone.com/music/music-
features/taylor-swift-ticketmaster-live-nation-monopoly-antitrust-commen-
tary-1234635257/ [https://perma.cc/7C2H-7Y6C].
43
Janet Morrissey, Ticketmaster, Live Nation: Obama’s Antitrust Test, T (June 10,
2009), https://content.time.com/time/business/article/0,8599,1903447,00.html
[https://perma.cc/5VVT-R33S].
2024 / e Antitrust Case Against Live Nation Entertainment 9
Entering the primary-ticketing market in December 2008,
44
Live Nation
was uniquely positioned to compete against Ticketmaster because it “could
achieve sucient scale to compete eectively ... simply by ticketing its own
venues” and “could bundle access to important concerts with its ticketing
service.”
45
Less than two months later, the two companies agreed to merge.
46
At the time, there was signicant concern with the merger. For example,
Bruce Springsteen lamented that “the one thing that would make the current
ticket situation even worse for the fan than it is now would be Ticketmaster
and Live Nation coming up with a single system, thereby returning us to a
near monopoly situation in music ticketing.”
47
A promoter warned that if the
merger took place, “all independent promoters” would be at “an irreparable,
competitive, disadvantage.”
48
And a producer was worried that the two com-
panies “are both Goliaths” and that “their unication will create a business
with extraordinary market power and clout unlike any that I have ever seen
in my lifetime.”
49
44
Id.
45
Competitive Impact Statement, supra note 22, at 10.
46
Morrissey, supra note 43. See also Boehlert, supra note 27 (noting that Ticketron
could not compete with Ticketmaster, which was funded by billionaire Jay Pritzker,
and that when Ticketron caught on to what its rival was doing, Ticketmaster raised
the stakes, oering upfront guarantees of service charges).
47
Daniel Kreps, Bruce Springsteen “Furious” at Ticketmaster, Rails Against Live
Nation Merger, R S (Feb. 4, 2009), https://www.rollingstone.com/
music/music-news/bruce-springsteen-furious-at-ticketmaster-rails-against-live-
nation-merger-97368/ [https://perma.cc/B4Y9-3GNX].
48
e Ticketmaster/Live Nation Merger: What Does It Mean for Consumers and the
Future of the Concert Business: Hearing before the Subcomm. on Antitrust, Competition
Policy and Consumer Rights, 111th Cong. 12 (2009) (statement of Seth Hurwitz,
Co-Owner, I.M.P. Productions and 9:30 Club), https://www.govinfo.gov/con-
tent/pkg/CHRG-111shrg54048/html/CHRG-111shrg54048.htm [https://perma.
cc/B2N4-JLGK]. See also id. (explaining that the promoter’s “biggest competitor
will have access to all of my sales records, customer information, on-sale dates for
tentative shows, [and] ticket counts” and “can control which shows are promoted
and much more,” which “would be like Pepsi forcing Coke to use its services as
distributor”).
49
Id. at 11 (statement of Jerry Mickelson, Chairman and Executive Vice Presi-
dent, Jam Productions, LLC). See also, e.g., Ben Sisario, Justice Dept. Clears Tick-
etmaster Deal, N.Y. T, Jan. 25, 2010, https://www.nytimes.com/2010/01/26/
business/26ticket.html [https://perma.cc/J2S2-Y7SE] (noting that merger
“has faced vocal opposition from consumer groups, politicians, and independ-
ent concert promoters”); David Balto, e Ticketmaster-Live Nation Merger:
What Does It Mean for Consumers and the Future of the Concert Business?, CAP
A (Feb. 24, 2009), https://www.americanprogressaction.org/article/
10 Harvard Journal of Sports & Entertainment Law / Vol. 15
e DOJ nonetheless allowed the merger to proceed subject to certain
conditions.
50
As discussed below, however, the merged company breached its
promises, which resulted in an extension of the consent decree.
51
With each
passing day, Live Nation Entertainment increases its power, and without any
legitimate justication, harms multiple levels of the industry, including, as
discussed below, artists, venues, promoters, and consumers.
52
e next Part
sets out the broadest outlines of an antitrust claim.
the-ticketmaster-live-nation-merger-what-does-it-mean-for-consumers-and-the-fu-
ture-of-the-concert-business/ [https://perma.cc/Y3LA-3N7P] (merger “raises seri-
ous competitive concerns and could potentially lead to signicantly higher prices
for the hundreds of thousands of consumers who purchase tickets every day”); see
also id. (“By acquiring Live Nation, Ticketmaster will cut o the air supply for any
future rival to challenge its monopoly in the ticket distribution market,” and “[t]he
merged rm will control hundreds of venues, including the key venues and many of
the crucial marquee artists that produce the most lucrative tours.”).
50
See infra note 358 and accompanying text (discussing prohibition of (1) condi-
tioning availability of concerts on use of Ticketmaster’s ticketing and (2) retaliation
for venues using other ticketing companies). In addition, the settlement “requir[ed]
Ticketmaster to license its ticketing platform to AEG, another major promoter and
owner of some of the country’s most signicant venues,” and mandated that the com-
pany “divest to Comcast-Spectacor its Paciolan line of business,” which “allows ven-
ues to host their own primary ticketing service on their own websites.” Christine A.
Varney, Ass’t Att’y Gen’l, DOJ Antitrust Div., e TicketMaster/Live Nation Merger
Review and Consent Decree in Perspective, Address (Mar. 18, 2010), https://www.
justice.gov/atr/speech/ticketmasterlive-nation-merger-review-and-consent-decree-
perspective#N_7_ [https://perma.cc/7JWJ-59U4].
In a statement that appears to have been overly optimistic, the head of the Anti-
trust Division believed that these conditions addressed any competitive concerns that
the merger presented. See id. (“We believe that the creation of two new competitors
to Ticketmaster, employing two very dierent business models, will give existing
independent players and people thinking of getting into the business a more varied
package of choices as to how they will try to best serve consumers in the live music
business,” as “[t]hey can choose to nd their place within the Ticketmaster / Live
Nation model, the AEG model, the Paciolan model, or another model of their own
design.”). e Assistant Attorney General continued: “[W]hat we protect is competi-
tion, not competitors, and so the task of making those models work for them has
to be theirs, not ours,” as “[w]e believe that we have provided a fair playing eld on
which they can compete, and we hope that they can take this opportunity to show
that consumers prefer the product that they can provide.” Id.
51
See infra notes 358–370 and accompanying text.
52
See infra Part IV.
2024 / e Antitrust Case Against Live Nation Entertainment 11
II.
A
F
e primary antitrust claim a plainti could bring against Live Nation
Entertainment would be monopolization.
53
is oense has two elements:
monopoly power and exclusionary conduct.
54
e rst element is monopoly power, which has been dened as “the
power to control prices or exclude competition.”
55
Monopoly power can be
shown in one of two ways. First, it can be proved indirectly by examining a
defendant’s market share along with barriers to entry that could entrench that
market position.
56
A market share of at least 70 percent “generally establishes
a prima facie case of monopoly power,” with some courts nding such power
between 50 percent and 70 percent.
57
e leading antitrust treatise suggests
a presumption of monopoly power from a “share of a well-dened market
protected by sucient entry barriers” that “has exceeded 60 percent for the
ve years preceding the complaint.”
58
53
e Article focuses on a case a government agency could bring. Private plain-
tis could use these arguments though they also would need to satisfy standing
requirements. See, e.g., generally, IIA P E. A, H H,
R D. B, & C P D, A L: A A
A P T A ¶¶ 335–59 (5th ed. 2020) (dis-
cussing standing).
54
E.g., United States v. Grinnell Corp., 384 U.S. 563, 570–71 (1966).
55
United States v. E.I. duPont de Nemours & Co., 351 U.S. 377, 391 (1956).
56
See H H, F A P: T L C-
P § 6.2b, at 359–60 (5th ed. 2016) [hereinafter H].
57
ABA S A L, A L D 230–32
(7th ed. 2012) [hereinafter A L D]. See, e.g., FTC v. Face-
book, Inc., 560 F. Supp. 3d 1, 18 (D.D.C. 2021) (noting that alleged market share
of 60 percent “might sometimes be acceptable”); BRFHH Shreveport, LLC v. Willis
Knighton Med. Ctr., 176 F. Supp. 3d 606, 611 (W.D. La. 2016) (denying motion
to dismiss where market share was 60 percent to 75 percent); Lenox MacLaren Sur-
gical Corp. v. Medtronic, Inc., 762 F.3d 1114, 1124 (10th Cir. 2014) (fact-nder
“could reasonably consider... 62% market share as evidence of monopoly power”);
Royal Mile Co. v. UPMC, No. 10-1609, 2013 WL 5436925, at *31 (W.D. Pa.
Sept. 27, 2013) (defendant “suciently alleged... monopoly power” based on mar-
ket share that “exceeded 60%”); Image Tech. Servs., Inc. v. Eastman Kodak Co., 125
F.3d 1195, 1207 (9th Cir. 1997) (65 percent sucient for monopoly power); Syufy
Enterprises v. Am. Multicinema, Inc., 793 F.2d 990, 996 (9th Cir. 1986) (nding
“market share of 60-69%... adequate to support a jury determination of monopoly
power”).
58
IIIB H H, A L: A A A
P T A ¶ 801a, at 427 (5th ed. 2022). See also id. ¶
12 Harvard Journal of Sports & Entertainment Law / Vol. 15
Second, monopoly power can be proved directly.
59
In United States v.
Microsoft, the D.C. Circuit found a “clear” example of such proof when a
rm could “protably raise prices substantially above the competitive level.”
60
Similarly, the ird Circuit in Broadcom v. Qualcomm stated that “[t]he exist-
ence of monopoly power may be proven through direct evidence of supra-
competitive prices and restricted output.”
61
Most generally, direct evidence
can take the form of “the actual exercise of control over prices and/or the
actual exclusion of competition from the relevant market.”
62
e second element of monopolization is predatory or exclusionary
conduct. e Supreme Court in United States v. Grinnell Corporation articu-
lated the oft-cited test: whether the conduct reects the “willful acquisition or
maintenance of [monopoly] power” as opposed to a “superior product, busi-
ness acumen, or historic accident.”
63
e Court in Aspen Skiing v. Aspen High-
lands Skiing elaborated, nding it “relevant to consider [the conduct’s] impact
on consumers and whether it has impaired competition in an unnecessarily
restrictive way.”
64
Similarly, the Broadcom court stated that anticompetitive
conduct “is generally dened as conduct to obtain or maintain monopoly
power as a result of competition on some basis other than the merits.”
65
Even
more guidance is provided when a company engages in conduct that consti-
tutes long-recognized forms of potentially anticompetitive behavior. Most of
this Article analyzes such conduct: exclusive ticketing contracts with venues,
tying promotion to ticketing, deception, and an overall course of conduct.
66
801a2, at 430 (explaining that presumption is strengthened by recent increases in
market share).
59
A L D, supra note 57, at 69–70 (noting that “direct
proof has provided the basis for ndings of substantial anticompetitive eects in
some prominent cases”).
60
253 F.3d 34, 51 (D.C. Cir. 2001); see also, e.g., Ball Mem’l Hosp., Inc. v. Mut.
Hosp. Ins., Inc., 784 F.2d 1325, 1335 (7th Cir.1986) (explaining that market power
is “the ability to cut back the market’s total output and so raise price”); In re Nexium
(Esomeprazole) Antitrust Litig., 968 F. Supp. 2d 367, 388 n.19 (D. Mass. 2013)
(stating that “[w]here direct evidence of market power is available,... a plainti
need not attempt to dene the relevant market” and nding that that was the case
when a brand-name drug company was able to “maintain the price of [a] drug... at
supracompetitive levels without losing substantial sales...”).
61
501 F.3d 297, 307 (3d Cir. 2007).
62
A L D, supra note 57, at 226.
63
384 U.S. 563, 570–71 (1966).
64
Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 472 U.S. 585, 605 (1985).
65
Broadcom Corp. v. Qualcomm Inc., 501 F.3d 297, 308 (3d Cir. 2007).
66
See infra Parts VI–IX.
2024 / e Antitrust Case Against Live Nation Entertainment 13
III.
M
P
e rst issue is monopoly power. is Part considers this inquiry in
three markets: primary ticketing,
67
promotion, and venues.
68
As a starting point, market denition depends on substitutability from
the purchaser’s standpoint. As the Supreme Court explained in United States
v. E.I. du Pont de Nemours, a relevant market is based on the array of “com-
modities reasonably interchangeable by consumers.”
69
Demand substitution,
which “focuses on buyers’ views of which products are acceptable substitutes
or alternatives,” thus plays a critical role in dening the market.
70
e scope of the market need not cover the broadest possible collection
of products. In International Boxing Club of N.Y. v. United States, for example,
the Supreme Court upheld a nding of a separate market for “championship
boxing contests” as opposed to all such contests.
71
Similarly, the Court in
NCAA v. Board of Regents of University of Oklahoma found a separate mar-
ket in “intercollegiate football telecasts” because they “generate an audience
uniquely attractive to advertisers” and “competitors are unable to oer pro-
gramming that can attract a similar audience.”
72
In this case, three markets reveal monopoly power.
73
e remainder of
this Part highlights the company’s market share. ese ndings are buttressed
67
Distinguished from primary ticketing is secondary (or resale) ticketing, which
“refers to the sale of tickets by a holder who originally obtained the tickets from a
venue or other entity, or a ticketing services provider selling on behalf of a venue or
other entity.” See Live Nation 10-K, supra note 19, at 4; see also at’s the Ticket: Pro-
moting Competition and Protecting Consumers in Live Entertainment, Hearing Before
the S. Comm. Jud., 118 Cong. 96–113 (2023) (testimony of Jerry Mickelson, CEO
and President, Jam Productions, LLC), https://www.congress.gov/event/118th-con-
gress/senate-event/333501/text?s=1&r=92 [https://perma.cc/8GB5-9BN3]; infra
note 173 and accompanying text.
68
As mentioned above, the company also has power in artist management. See
infra notes 104–105 and accompanying text.
69
358 U.S. 377, 395 (1956).
70
Competition and Monopoly: Single-Firm Conduct Under Section 2 of the Sher-
man Act, DOJ A (2009), https://www.justice.gov/archives/atr/competition-
and-monopoly-single-rm-conduct-under-section-2-sherman-act-chapter-2 - N_54
[https://perma.cc/3H27-T2W4].
71
358 U.S. 242, 250 (1959).
72
468 U.S. 85, 111 (1984).
73
e geographic scope of each of the markets is the United States. In its 2010
complaint, the DOJ alleged a market based on “[m]ajor concert venues purchas-
ing primary ticketing services... located throughout the United States.” Ticket-
master Amended Complaint, supra note 41, ¶ 36. In another 2010 ling, the DOJ
14 Harvard Journal of Sports & Entertainment Law / Vol. 15
by direct evidence
74
discussed throughout this Article like increased prices
and reduced quality in the ticketing market and exclusion of competition in
the promotion and venue markets.
A.
P
rimary Ticketing
e rst market covers primary ticketing. As the DOJ explained in its
2010 complaint against Ticketmaster and Live Nation (which, as discussed
above,
75
was settled by consent decree), “[m]ajor concert venues that gener-
ate substantial income from live music events can be readily identied, and
market power can be selectively exercised against them, because there is no
reasonable substitute service to which the customers could turn.”
76
Ticketmaster has had control over this market for decades.
77
In the com-
plaint, the DOJ explained how Ticketmaster “dominated primary ticketing,
including primary ticketing for major concert venues, for over two decades.”
78
At that time, Ticketmaster’s share was more than 80 percent, and other than
merging partner Live Nation, “no other competitor ... ha[d] more than a
four percent share.”
79
is high market share was entrenched by several factors, including
renewal rates of at least 85 percent,
80
the integration of ticketing with promo-
tion and artist management,
81
Ticketmaster’s “economies of scale, long-term
contracts, and brand recognition,” and “the technological hurdles necessary
to compete in primary ticketing.”
82
Major concert venues, as the DOJ has
“include[d] only major concert venues located in the United States” in the relevant
market on the grounds that “the merged rm could price discriminate,” which would
mean that “any eects of the proposed transaction on foreign venues would be dis-
tinct from any eects on domestic venues.” Plainti United States’ Response to Pub-
lic Comments at 5, U.S. v. Ticketmaster Entertainment, Inc., Case. 1:10-cv-00139
(D.D.C. June 21, 2010).
74
See supra notes 55–62 and accompanying text.
75
See supra note 50 and accompanying text.
76
Ticketmaster Amended Complaint, supra note 41, ¶ 35.
77
For a discussion of antitrust investigations and litigation Ticketmaster has faced,
see Tkacik & Brown, supra note 41 and accompanying text.
78
Ticketmaster Amended Complaint, supra note 41, ¶ 21.
79
Id. (providing gures from 2008).
80
Id. ¶ 2.
81
Id. ¶ 43.
82
Id. ¶ 5.
2024 / e Antitrust Case Against Live Nation Entertainment 15
explained, are required to have “the most sophisticated ticketing services,”
which leaves them with “few ticketing options.”
83
is dominance has continued unabated. For the largest U.S. venues
today, the company is widely understood to have an 80 percent market share
of the primary ticketing market. One source concluded that Ticketmaster
“tickets 80 of the top 100 arenas in the country,” with “[n]o other company”
having “more than a handful.”
84
A senior Ticketmaster ocial agreed with
the suggestion in 2021 that the “market share within the primary market” is
“about 80 percent.”
85
Recent gures support these ndings. In 2022, Ticketmaster provided
ticketing services for 87 percent of Billboard’s Top 40 U.S. tours.
86
Similarly,
89 percent of U.S. shows in “Billboard’s 2022 Top 25 Stadiums were ticketed
by Ticketmaster.”
87
Showing its reach across the country, those stadiums were
in Arlington, Texas; Atlanta, Georgia; Charlotte, North Carolina; Chicago,
Illinois; Denver, Colorado; East Rutherford, New Jersey; Foxborough, Massa-
chusetts; Houston, Texas; Inglewood, California; Las Vegas, Nevada; Miami,
Florida; Orlando, Florida; San Diego, California; Santa Clara, California;
83
Plainti United States’ Response to Public Comments at 5, U.S. v. Ticketmas-
ter Entertainment, Inc., Case 1:10-cv-00139-RMC (D.D.C. June 21, 2010). For a
discussion of how the DOJ believed its conditions addressed the competitive con-
cerns presented by the merger, see supra note 50 and accompanying text.
84
Ben Sisario & Graham Bowley, Live Nation Rules Music Ticketing, Some Say
With reats, N.Y. T (Apr. 1, 2018), https://www.nytimes.com/2018/04/01/
arts/music/live-nation-ticketmaster.html [https://perma.cc/3F8Z-RF8L].
85
Joint Public Hearing, To Examine Potentially Unfair and Deceptive Practices
Occurring in New York State’s Primary and Secondary Ticket Marketplaces for Live Events
in Order to Identify Any Legislative and Policy Reforms, N.Y. Senate Standing Comm.
on Investigations and Government Operations and Standing Comm. on Commerce,
Econ. Devel., & Small Bus., 17–18 (Apr. 22, 2021), https://www.nysenate.gov/
calendar/public_hearings/april-22-2021/joint-public-hearing-examine-potentially-
unfair-and [https://perma.cc/7DEQ-XMY2].
86
at’s the Ticket: Promoting Competition and Protecting Consumers in Live
Entertainment, Hearing Before the S. Comm. Jud., 118 Cong. 5 (2023) (statement
of Jerry Mickelson, CEO and President of Jam Productions, LLC), https://www.
judiciary.senate.gov/imo/media/doc/Testimony%20-%20Mickelson%202023-01-
24.pdf [https://perma.cc/9SRB-QER7]. is gure has been consistent across Top
25 stadiums (89%), other stadiums (89%), Top 50 venues (15,000+ capacity) (86%),
Top 25 venues (10,000–15,000 capacity) (79%), other amphitheaters (94%), other
arenas (81%), theaters (82%), and Atlantic City beach (100%). e remaining 13%
was split among AXS (7%), Paciolan (3%), Tickets.com (2%), SeatGeek (1%), Amp
Tickets (0%), and eTix (0%). See id. at Exhibit G.
87
Id. at Exhibit H. 17 of the 25 stadiums are in the United States.
16 Harvard Journal of Sports & Entertainment Law / Vol. 15
and Washington, D.C. with only stadiums in Boston, Massachusetts and
Chicago, Illinois not ticketed by Ticketmaster.
88
e level below stadiums consists of amphitheaters, with capacities
between 5,000 and 30,000.
89
ere is power here too. One study found that
Ticketmaster was “the sole ticketing provider” for 82 percent of U.S. amphi-
theaters.
90
As a leading promoter explained, the company’s use of 68 amphi-
theaters ensures that it “has no competition during the summer months in
its outdoor venues.”
91
Professional sports teams provide a nal example of Ticketmaster’s
power. e company has exclusive ticketing agreements with 87 percent of
NBA teams, 88 percent of NHL teams, and 93 percent of NFL teams.
92
B. Promotion
e second market covers promotion. Promoters play a unique role
in the music ecosystem, working “on behalf of the venue or event organ-
izers” to “book[] artists, arrang[e] logistics, market[] the event, and ensur[e]
its success.”
93
After receiving the proceeds from ticketing, promoters pay the
“performer, venue, and other expenses,” taking on the nancial risks of the
event.
94
Concert promoters “were historically small independent shops that often
boosted the local music scene.”
95
But SFX, Live Nation’s predecessor, “spent
$2 billion purchasing these independent players” between 1996 and 1999,
“consolidating the industry” and drawing a DOJ antitrust investigation.
96
88
Id. e two non-Ticketmaster venues were ticketed by Tickets.com.
89
Id. at Exhibit I.
90
Krista Brown, e Depth of Live Nation’s Dominance, A. E. L
P (June 2023), https://www.economicliberties.us/our-work/the-depth-of-
live-nations-dominance/# [https://perma.cc/G8EZ-BDQB].
91
Mickelson, supra note 86, at 6.
92
Id. at 4–5. A primary reason why ticketing rivals have focused on the secondary
market is because Ticketmaster “has the primary ticket marketplace mostly locked
down.” Joint Statement on Ticketmaster/Live Nation, F M (Jan. 24,
2023), https://www.futureofmusic.org/news/2023/1/24/joint-statement-on-ticket-
masterlive-nation [https://perma.cc/3XTB-5ZUL].
93
Antonia Sulley, What Does a Live Music Promoter Do?, G B
(Sept. 2, 2022), https://blog.groover.co/en/tips/live-music-promoter/ [https://
perma.cc/36KB-6DS2].
94
Ticketmaster Amended Complaint, supra note 41, ¶ 17.
95
Brown, supra note 42.
96
Id.
2024 / e Antitrust Case Against Live Nation Entertainment 17
In the past 15 years, the company has expanded control over the pro-
motion market. Before merging with Ticketmaster, Live Nation was “the
country’s largest concert promoter.”
97
But even after the merger, it continued
its acquisitions, purchasing the third largest concert promoter in the world,
OCESA, in 2021.
98
e promotion market is particularly important today
given how essential touring is for artists to make money.
99
Along these lines,
Live Nation’s power is even more critical.
It has been widely reported that the company “controls 60% of the
promotion business for major concerts.”
100
at number is even higher for
the largest concerts. In 2018, the company’s president said during an investor
call that it “expect[ed] to promote 20 of the top 25 global tours” during the
year.
101
And in 2021, Live Nation promoted 73 percent of the top 25 U.S.
concert tours by gross revenue.
102
AEG, the second-ranking promoter, is far
behind with roughly 20 percent of the market.
103
In a ling with the Securities and Exchange Commission (SEC), Live
Nation underscored its power in several promotion-related markets:
We believe that we are the largest live entertainment company in the world,
connecting over 670 million fans across all of our concerts and ticket-
ing platforms in 48 countries during 2022. We believe we are the largest
97
Ticketmaster Amended Complaint, supra note 41, ¶ 3.
98
Andrew Mies, Explained: How Ticketmaster & Live Nation Control the Live Music
Industry, WR (June 28, 2023), https://www.whiskeyri.com/2023/06/28/
explained-how-ticketmaster-live-nation-control-the-live-music-industry/ [https://
perma.cc/5YG3-V8ZM].
99
Devon Delno, How Musicians Really Make eir Money—And It Has Noth-
ing To Do with How Many Times People Listen to their Songs, B. I (Oct. 19,
2018), https://www.businessinsider.com/how-do-musicians-make-money-2018-10
[https://perma.cc/2XJD-V75D] (noting that in 2017, U2 made 95 percent, Garth
Brooks 89 percent, and Metallica 71 percent of their earnings from touring).
100
Jennifer Oliver, Live Nation reatens Anyone Who Doesn’t Play Along, Plaintis
Allege, M R (May 4, 2023), https://blog.moginrubin.com/ticketmaster-
live-nation-get-booed-concert-goers-le-class-action-for-unchecked-abuse-of-mar-
ket-power [https://perma.cc/QH4C-J9N3].
101
Matthew Blake, Is Live Nation Legal?, L A B. J. (Sept. 6,
2018), https://labusinessjournal.com/media/live-nation-legal/ [https://perma.cc/
J3GR-RXHQ].
102
Jack Groetzinger, at’s the Ticket: Promoting Competition and Protecting Con-
sumers in Live Entertainment Before the S. Comm. On the Judiciary, 118th Cong. 4
(2023) (statement of Jack Groetzinger, Co-Founder and CEO, SeatGeek), https://
www.judiciary.senate.gov/imo/media/doc/Testimony%20-%20Groetzinger%20
-%202023-01-24.pdf [https://perma.cc/M7RR-Q4UT].
103
Oliver, supra note 100.
18 Harvard Journal of Sports & Entertainment Law / Vol. 15
producer of live music concerts in the world, based on total fans that attend
Live Nation events as compared to events of other promoters, connecting
over 121 million fans to more than 43,600 events for over 7,800 artists in
2022. We believe we are one of the world’s leading artist management com-
panies based on the number of artists represented.
104
As of the time this Article was published, Live Nation had “relationships
with more than 500 artists.”
105
Live Nation stated in its SEC ling that “[d]espite the concert business
not fully emerging from closures and mandated restrictions until well into the
rst quarter of 2022,” the company “still had its best year ever, breaking both
nancial and operational records.”
106
It highlighted some of its top acts dur-
ing the year: “Coldplay, Harry Styles, Bad Bunny, and Billie Eilish,” together
with “nearly 150 festivals” that “attracted over 13 million fans globally, pow-
ered by global brands including Lollapalooza, Electric Daisy Carnival, and
Rock in Rio Brazil.”
107
C. Venues
e third market consists of major concert venues. As the DOJ explained
in its 2010 complaint, these venues, which “generate substantial income from
live music events, can be readily identied, and market power can be selec-
tively exercised against them, because there is no reasonable substitute service
to which the customers could turn.”
108
As far back as 1994, Ticketmaster had exclusive contracts with
63 percent of the venues that hosted roughly 10 million concert tickets, with
two commentators noting that the company “unquestionably had exclusive
contracts with the majority of venues that hosted large-scale concerts” and
that it “had a rm grasp on the most coveted” venues.
109
In a case brought against Ticketmaster, a court in 2003 found that the
company “has exclusive contracts which cover 75% of the tickets sold” in the
104
Live Nation 10-K, supra note 19, at 2.
105
Live Nation Entertainment, Live Nation’s Artist Nation Division Redenes the
Music Industry with Unied Rights Model (Oct. 16, 2007), https://www.livenationen-
tertainment.com/2007/10/live-nations-artist-nation-division-redenes-the-music-
industry-with-unied-rights-model/ [https://perma.cc/3T36-ZZ9T].
106
Live Nation 10-K, supra note 19, at 30.
107
Id.
108
Ticketmaster Amended Complaint, supra note 41, ¶ 35.
109
B & B, supra note 31, at 136–37.
2024 / e Antitrust Case Against Live Nation Entertainment 19
larger arenas in “31 of the 41 regional areas” and that “[i]n 25 of the regional
areas,” its share “was about 90%.”
110
Ticketmaster provided ticketing services
to 87 of the top 100 U.S. venues in 2007 and 84 in 2008,
111
and it had
roughly 83 percent market share at the time of the merger in 2010.
112
One witness at a congressional hearing stated that “Ticketmaster would
contend” that it “only control[s] about 50 percent of the venue market” but
that likely includes “small venues holding less than a few thousand people”
and “small community theaters.”
113
e witness stated that “[t]he number is
almost certainly at 80 percent or above.”
114
A general consensus of “industry experts” has found that “70% to 80%
of major U.S. venues have exclusive contracts with Ticketmaster.”
115
Similarly,
in a congressional hearing, Senators cited “various estimates” that “Ticket-
master controls the ticketing at 70 to 80 percent of major concert venues in
110
Ticketmaster Corp. v. Tickets.Com, Inc., No. CV99-7654-HLH(VBKX),
2003 WL 21397701, at *2 (C.D. Cal. Mar. 7, 2003), a’d, 127 F. App’x 346 (9th
Cir. 2005). Based on the venues preferring long-term exclusive contracts and the
plainti ticketing rival’s ability to compete for contracts, the court granted Ticket-
master’s motion for summary judgment. Id. at *5–6.
111
B & B, supra note 31, at 321. See id. (“Despite their best eorts to
obscure the fact, it was clear that Live Nation and Ticketmaster controlled the major-
ity of the country’s premier venues.”).
112
Ticketmaster Amended Complaint, supra note 41, ¶ 21.
113
at’s the Ticket: Promoting Competition and Protecting Consumers in Live
Entertainment, Hearing Before the S. Comm. Jud., 118 Cong. 241 (2023) (responses
of Sal Nuzzo, Senior Vice President, e James Madison Institute, to Questions for
the Record), https://www.judiciary.senate.gov/download/2023-01-24-qfr-responses-
nuzzo [https://perma.cc/G9MP-EW7T].
114
Id.
115
Mark Dent, e Sneaky Economics of Ticketmaster, T H (Dec. 10,
2022), https://thehustle.co/the-sneaky-economics-of-ticketmaster/ [https://perma.
cc/FWV5-K63E].
20 Harvard Journal of Sports & Entertainment Law / Vol. 15
the United States.”
116
More generally, one commentator noted that “most ...
of the stadiums have relationships with Ticketmaster.”
117
Live Nation has stated that it “owns, operates, has exclusive booking
rights for, or has an equity interest for which [it has] a signicant inuence
in 338 venues globally, including House of Blues music venues and prestig-
ious locations such as e Fillmore in San Francisco, Brooklyn Bowl, the
Hollywood Palladium, the Ziggo Dome in Amsterdam, 3Arena in Ireland,
Royal Arena in Copenhagen, and Spark Arena in New Zealand.”
118
Empirical
analysis has found that Live Nation operates 64 percent of the top 88 U.S.
amphitheaters and Ticketmaster services 78 percent of the 68 top grossing
arenas in the country.
119
116
Ben Sisario & Matt Stevens, Ticketmaster Cast as Powerful “Monopoly” at Sen-
ate Hearing, N.Y. T (Jan. 24, 2023), https://www.nytimes.com/2023/01/24/
arts/music/ticketmaster-taylor-swift-senate-hearing.html [https://perma.cc/N6U8-
8VYR]. See also A A I (AAI), B L N-
T M: W W B-U R L L, at 2
(July 11, 2023), https://www.antitrustinstitute.org/work-product/busting-the-live-
nation-ticketmaster-monopoly-what-would-a-break-up-remedy-look-like/ [https://
perma.cc/SEX7-8PVB] (Live Nation is “estimated to have exclusive contracts with
about 70% of venues.”) [hereinafter AAI R].
117
Nilay Patel, Taylor Swift vs. Ronald Reagan: e Ticketmaster Story, T V
(Mar. 21, 2023), https://www.theverge.com/23645057/taylor-swift-ticketmaster-
eras-tour-beyonce-antitrust-monopoly-reagan-senate-hearing-congress [https://
perma.cc/7YD5-J3UY].
118
Live Nation 10-K, supra note 19, at 2. As a leading concert promoter explained:
Live Nation owns, operates, has exclusive booking rights for, or has an equity inter-
est in 320 venues that include 68 outdoor amphitheaters (5,000 to 30,000 capac-
ity), 21 arenas (5,000 to 20,000 capacity), 104 theatres (1,000 to 6,500 capacity),
57 clubs (less than 1,000 capacity), 15 music halls (1,000 to 2,000), 39 festival sites
and 15 other venues.
Mickelson testimony, supra note 86, at 4. See also at’s the Ticket: Promoting Compe-
tition and Protecting Consumers in Live Entertainment, Hearing Before the S. Comm.
Jud., 118 Cong. 219–38 (2023) (responses of Jerry Mickelson, CEO and President
of Jam Productions, LLC, to Questions for the Record), https://www.judiciary.
senate.gov/imo/media/doc/2023-01-24%20-%20QFR%20Responses%20-%20
Mickelson1.pdf [https://perma.cc/F7N8-D52V] (last visited Nov. 12, 2023) (“Live
Nation operates or is aliated with 226 of the best North American venues, includ-
ing the overwhelming majority of amphitheaters and best outdoor festivals, impor-
tant segments in our industry.”).
119
See Brown, supra note 90, at 3–4. One example of the company’s advantages
is oered by the San Antonio City Council’s decision to choose Ticketmaster for an
exclusive contract because it ensured $2,050,000 that the city could allocate “any-
where they choose” while its rival oered a modestly lower number, but with the
2024 / e Antitrust Case Against Live Nation Entertainment 21
In summary, Live Nation Entertainment has roughly 60 percent to
80 percent market share in the markets for primary ticketing, promotion, and
venues. is high market share has been consistent over a very long period
of time: roughly 30 years.
120
As mentioned above, it is entrenched by barri-
ers to entry that include economies of scale, long-term contracts, brand rec-
ognition, and technological hurdles.
121
And as will be discussed throughout
this Article, these market share ndings are buttressed by direct evidence like
increased prices and reduced quality in the ticketing market and exclusion of
competition in the promotion and venues markets. e company, in short,
has monopoly power.
122
IV. H C O
Central to an antitrust claim against Live Nation Entertainment is con-
sumer harm. is Part discusses harms that consumers—namely fans—have
suered in the form of higher prices and reduced quality. Nor is it just fans
who have suered. As explained in Section A, several major industry players
have been harmed.
A. Industry Harm
Live Nation Entertainment’s anticompetitive behavior has injured art-
ists, venues, and promoters.
123
revenue “stay[ing] at the Tobin [Center,] which the city did not own” in contrast
to Ticketmaster funds that “could be utilized by the City and would not be ear-
marked... .” Texas County of Bexar, City of San Antonio, Meeting Minutes: City
Council B Session, at 4–5 (Sept. 18, 2019), https://webapp9.sanantonio.gov/FileN-
etArchive/{FF3B10D8-C4D8-4FAB-A3D0-56907941475A}/{FF3B10D8-C4D8-
4FAB-A3D0-56907941475A}.pdf [https://perma.cc/8BTV-9X2L]. See also id. at 6
(highlighting Ticketmaster’s advantages from being “internationally known,” with
consumers “naturally migrat[ing]” to it “when purchasing tickets”).
120
See supra notes 78 & 109 and accompanying text (33 years in ticketing and
29 years with venues).
121
See supra notes 80–83 and accompanying text.
122
See also supra note 58 and accompanying text (suggesting presumption of
monopoly power from “share of a well-dened market protected by sucient entry
barriers” that “has exceeded 60 percent for the ve years preceding the complaint”).
IIIB H, supra note 58, ¶ 801a, at 427.
123
See Mickelson QFR Responses, supra note 118, at 9 (pointing to harm suf-
fered by “promoters, primary and secondary ticketing companies, artist management
rms, venue management companies, and artist merchandise companies”).
22 Harvard Journal of Sports & Entertainment Law / Vol. 15
1. Artists
First, artists suer from the company’s control over each segment of the
supply chain. As a consequence of Ticketmaster’s exclusive contracts with
venues and Live Nation Entertainment’s tying of promotion to ticketing, art-
ists are forced to use Ticketmaster for ticketing.
124
ose who do not want to
use Ticketmaster end up with limited venue options.
125
And even when artists
(other than the most successful ones) enter into deals, their lack of bargaining
power “forces them into lopsided revenue-sharing agreements with venues.”
126
One example is provided by a Live Nation memorandum leaked in
2020 that reduced “artist guarantees (the money artists are assured to receive,
regardless of turnout) ... 20 percent from 2020 rates.”
127
e new terms also
increased the “nancial burden for the cancellation of a concert due to poor
ticket sales” from “100 percent of the guarantee ... to 25 percent.”
128
And in
a change that Billboard magazine called “unheard of in the music industry,”
it required artists “to repay the promoter two times their fee,” which was
124
See infra Parts VI & VII.
125
Juliana Kaplan, It’s Not Just Taylor Swift., B. I, (June 8, 2023), https://
www.businessinsider.com/musicians-make-money-touring-taylor-swift-tickets-tick-
etmaster-live-nation-2022-12 [https://perma.cc/FF5M-R3N4] (quoting one expert:
“When you’re an artist the size of Taylor Swift... [y]ou’re pretty much locked in
to touring with these well-established big arenas, and it’s hard to nd substitutes for
them.”); see also id. (Swift “could choose a dierent venue if she isn’t happy with a
particular partner that they’re dealing with. But then she would have to skip the mar-
ket in a lot of these cases, because there’s only one stadium in that city.”).
126
AAI R, supra note 116. See infra notes 277–282 and accompany-
ing text (explaining how integration of previous separate worlds of promotion
and venue operation harms artists). See also Your Favorite Band Sucks, Ticketmas-
ter Sucks, A P, at 1:06:30–1:07:55 (Apr. 1, 2023), https://podcasts.
apple.com/us/podcast/ticketmaster-sucks-and-so-does-pearl-jam-taylor-swift/
id1322283290?i=1000606909278 [https://perma.cc/9XJH-KRDN] (noting how
top artists received 100 percent—or even more—of door sales, how they in turn paid
a percentage of their merchandise sales to the venue, how this has harmed smaller and
mid-tier artists who “don’t have a leg to stand on when it comes to negotiating,” and
how such an arrangement “became standard because someone... making millions
of dollars is getting a sweetheart deal that mid-tier bands and lower-level bands can
never get” even though “they still have to pay their cut”).
127
Michael Broerman, Live Nation Details Contract Changes For Artists Includ-
ing Pay Cuts, Shifts in Financial Burden for Canceled Events, L L M
(June 18, 2020), https://liveforlivemusic.com/news/live-nation-contract-changes/
[https://perma.cc/2VHB-YWKA].
128
Id.
2024 / e Antitrust Case Against Live Nation Entertainment 23
“essentially, a hefty ne.”
129
Even if some of these terms were modied after
a “strong backlash,” they still “serve[] as a compelling example of just how
brazenly Live Nation feels it can wield its market power.”
130
e universe of artists that can attain success also is restricted, with “emerg-
ing and diverse artists” having fewer opportunities given Live Nation’s “emphasis
on well-known, established acts.”
131
And more generally, the “specter of deal-
ing with a monopolistic provider of services in the live events market can chill
incentives for innovation in the creative arts.”
132
2. Venues
Venues that are not in exclusive contracts also suer by being forced
to take Ticketmaster’s ticketing services as a condition of obtaining access
to Live Nation artists.
133
Nor is this harm theoretical. As discussed below,
Ticketmaster and Live Nation “repeatedly conditioned and threatened to
condition Live Nation’s provision of live concerts on a venue’s purchase of
Ticketmaster ticketing services” and “retaliated against venues that opted to
use competing ticketing services—all in violation of the plain language of
129
Id. (emphasis omitted).
130
Future of Music Coalition, Artist Rights Alliance, American Association of
Independent Music, Music Workers Alliance, & Union of Musicians & Allied Work-
ers, Joint Statement on Ticketmaster/LiveNation, (Jan. 24, 2023), https://www.futu-
reofmusic.org/news/2023/1/24/joint-statement-on-ticketmasterlive-nation [https://
perma.cc/LA76-HPM7].
131
Mickelson QFR Responses, supra note 118, at 9.
132
AAI R, supra note 116.
133
See infra Part VII. For a discussion of the harms from exclusive long-term venue
deals with Ticketmaster, see infra Part VI. When a Live Nation venue enters an area,
independent venues face a potential loss of shows and even threats to their viability.
See Matt Wild, Common Council Gives Final Approval to FPC Live Concert Venues in
Deer District, M R, (Nov. 1, 2022), https://milwaukeerecord.com/
music/common-council-gives-final-approval-to-fpc-live-concert-venues-in-deer-
district/ [https://perma.cc/6CKY-YNZ2] (venue operator stated: “Live Nation will
be directly across the street from us. ey want their artists and concert tours to
appear at their venues, which cuts out the independent venues like us. is threat-
ens our viability and very existence, which relies upon revenue from live concert
performances.”); Rich Rovito, 3 Issues with Milwaukee’s Proposed New Music Venues,
M (Dec. 8, 2022), https://www.milwaukeemag.com/3-issues-with-mil-
waukees-proposed-new-music-venues/ [https://perma.cc/68SV-8FP7] (venue opera-
tor explains that “[i]f there is a Live Nation facility in a city, no other venue there has
a chance to bid on that band”).
24 Harvard Journal of Sports & Entertainment Law / Vol. 15
the [consent] decree.”
134
In fact, the companies’ “well-earned reputation for
threatening behavior and retaliation ... has so permeated the industry that
venues are afraid to leave Ticketmaster lest they risk losing Live Nation con-
certs, hindering eective competition for primary ticketing services.”
135
In
at least two cases, Live Nation punished venues that sought to use ticketing
companies other than Ticketmaster by cutting their number of tours in half.
First, seemingly in response to the decision by the Gwinnett Center, a
popular arena outside Atlanta, to use AEG instead of Ticketmaster for ticket-
ing a concert by the band Matchbox Twenty, Live Nation decided not to use
the venue.
136
e venue’s booking director wrote to a Live Nation ocial:
“Don’t abandon Gwinnett .... If there’s an issue or issues let’s address.”
137
But
that ocial wrote back: “Issue? ... ree letters. Can you guess what they
are?”
138
In case there were any doubt about its intentions, the following year,
Live Nation “cut the number of tours it brought to Gwinnett in half, from
four to two,” and the Gwinnett ocial explained that “he had expected the
drop-o because Live Nation ‘warned us that they would put us in a literal
boycott.’”
139
A second example is provided by the Barclays Center in Brooklyn. In
2021, the venue switched its ticketing services from Ticketmaster to rival Seat-
Geek.
140
After that, the number of tours it put on fell from “about two dozen”
to thirteen.
141
One year into a seven-year contract, the venue “cancel[ed] its
partnership with SeatGeek and return[ed] to Ticketmaster.”
142
One commen-
tator could not “think of a time over the last decade where a major venue has
dropped a ticketing platform early on in the deal cycle.”
143
134
See infra note 360.
135
See infra note 360 and accompanying text.
136
Sisario & Bowley, supra note 84.
137
Id.
138
Id.
139
Id. See also id. (noting that “AEG provided e New York Times with copies of
those emails, and others, to support its account of threats”).
140
Ben Sisario, Barclays Center Drops a New Ticket Vendor for Its Old One: Tick-
etmaster, N.Y. T, Jan. 13, 2023, https://www.nytimes.com/2023/01/13/arts/
music/barclays-center-ticketmaster-seatgeek.html [https://perma.cc/6R52-PGKP].
141
Id.
142
Id.
143
Id.
2024 / e Antitrust Case Against Live Nation Entertainment 25
3. Promoters
Promoters also are harmed by Live Nation Entertainment’s behavior.
e company’s control over artists and ticketing prevents smaller rms from
being able to obtain top talent and attract audiences. One company that has
produced “thousands of indoor arena-level concerts” saw its production of
50 top-tier performers plummet from 1,677 shows since 1974 to 94 shows
after 2010 (when Live Nation merged with Ticketmaster), 13 after 2015, and
1 after 2019.
144
In fact, Live Nation Entertainment has used promotion as a “loss
leader”
145
to increase ticketing. In a 2009 hearing, the CEO of then-Live
Nation acknowledged that the company lost $70 million on artist guaran-
tees.
146
In 2019, Ticketmaster gained $232 million in operating income while
the overall company, Live Nation Entertainment, suered a $53 million loss.
147
And a 2023 source stated that “[f]or each of the past ve years, Live Nation’s
concert division has run at a loss” and that it “will sometimes oer 100% or
more of revenue from the face value of tickets ... to attract top artists.”
148
One analyst explained that margins in the concert business are around
1 percent, with Live Nation “making the bulk of its cash through ticket-
ing, sponsorships, and advertising.”
149
Ticketing oers substantial margins
because of its “lower costs and higher user fees.”
150
In particular, “[s]elling
tickets has a much lower ‘overhead’ cost structure than putting on concerts,”
144
Mickelson QFR Responses, supra note 118, at 5.
145
See infra notes 148 and 159 and accompanying text.
146
See B & B, supra note 31, at 322.
147
Live Nation Entertainment, Inc., Annual Report (Form 10-K), at 35
(Dec. 31, 2019), https://investors.livenationentertainment.com/sec-filings/all-
sec-lings?page=26 [https://perma.cc/4MCW-SHBT] (gures rounded to nearest
million).
148
T C F, L N E: I P’ D-
L N’ D L M I M-
FTC L’ N A’ D C 3
(2023), https://library.thecapitolforum.com/docs/797htd75zwqb [https://perma.cc/
E7QF-VMTT].
149
Alexandra Canal, Live Nation Would Be a “Shell of Itself” Without Ticketmas-
ter: Analyst, Y F, (Jan. 25, 2023), https://nance.yahoo.com/news/live-
nation-would-be-a-shell-of-itself-without-ticketmaster-analyst-212935847.html
[https://perma.cc/W2YC-BPDP].
150
L W, P P: H M I W, W
M G, W, Chap. 19 (2023) (ebook), https://opentext.uoregon.
edu/payforplay/chapter/chapter-19-the-live-music-industry/ [https://perma.cc/
G43E-MU37].
26 Harvard Journal of Sports & Entertainment Law / Vol. 15
which “requires a great deal of coordination and eort, including venue
rental, marketing, talent booking, management and maintenance, food and
beverage concessions, security, sound, lighting, stage construction and design,
[and] merchandising management.”
151
As one commentator explained, with-
out “Ticketmaster in the center of ... that machine, the parts wouldn’t hold
together as well.”
152
Live Nation Entertainment’s earning reports show the outsized posi-
tion of ticketing in its prots. During the rst three quarters of 2023, of
$16.9 billion in total revenues, $13.9 billion came from concert promo-
tion.
153
Ticketing, by contrast, accounted for only $2.2 billion.
154
In other
words, more than 80 percent of Live Nation Entertainment’s revenues are in
concert promotion while ticketing accounts for a mere 13 percent.
When looking at these gures in the context of the businesses’ costs,
however, Live Nation Entertainment’s use of its multi-level dominance to
funnel prots through ticketing becomes clear. In considering adjusted
operating income, which reects the prots in the business segments,
155
Ticketmaster accounts for roughly half of Live Nation Entertainment’s total
($880 million of $1.745 billion).
156
In other words, while Ticketmaster
accounts for 13 percent of Live Nation Entertainment’s sales, it makes up
more than 50 percent of the company’s prots.
ese gures are even more extreme in shorter periods. For example, in
the rst quarter of 2023, ticketing accounted for $271 million in adjusted
151
Id. See also id. (ticketing “involves far less complexity and costs” and allows the
company to charge service fees).
152
Canal, supra note 149.
153
Live Nation Entertainment, Inc., Quarterly Report (Form 10-Q), at 20
(Sept. 30, 2023), https://investors.livenationentertainment.com/sec-lings/all-sec-
lings/content/0001335258-23-000102/0001335258-23-000102.pdf [https://
perma.cc/CY85-8ZW5] (gures rounded to nearest hundred million).
154
Id. (gure rounded to nearest hundred million). In addition, there was roughly
$840 million from sponsorship and advertising. Id.
155
Income Information, U S, https://www.unclestock.com/documen-
tation/income.html [https://perma.cc/TG22-L7GY] (last visited Nov. 30, 2023)
(dening adjusted operating income as “[t]he amount of prot realized from a
business’s operations after taking out operating expenses”).
156
Live Nation Entertainment Form 10-Q, supra note 153, at 21. e gures are
even higher (63 percent) for operating income (which diers from adjusted operat-
ing income because it includes depreciation, amortization, and other factors): $727
million in ticketing out of $1.148 billion overall. Id. at 21, 31 (gures rounded to
nearest million).
2024 / e Antitrust Case Against Live Nation Entertainment 27
operating income, 85 percent of the total $320 million.
157
In contrast, less
than $1 million (0.3 percent) was contributed by concert promotion.
158
e company’s loss-leader strategy of undercharging in promotion to
overcharge in ticketing harms other promoters, who are not able to com-
pete with Live Nation’s articially low prices. e ability to rely on ticketing
gives the company an ability to continue amassing power in the market for
promotion.
159
B. Consumer Harm
In addition to the harms suered throughout the industry, consumers
also have been injured by Ticketmaster’s power. is section focuses on two
harms: fees and quality.
1. Fees
Anyone who has ever purchased a ticket using Ticketmaster does not
need a reminder about its high fees. A report by the N.Y. Attorney General
found that the fees charged in the ticketing industry tend to be higher than
by online vendors such as Amazon, Etsy, Expedia, and Priceline.
160
Nor is it
clear what services the fans obtain through “‘convenience charges,’ ‘service
fees,’ and ‘processing fees’ collected by online vendors,” especially with the
shift online in recent years, which reduced costs.
161
A 2016 report by the
National Economic Council found that “in most cases,” these fees “are not
connected to any additional goods and services beyond that of receiving the
purchased ticket.”
162
157
Live Nation Entertainment, Inc., Quarterly Report (Form 10-Q), at 18
(Mar. 31, 2023), https://investors.livenationentertainment.com/sec-lings/all-sec-
lings?form_type=10-Q&year= [https://perma.cc/GX48-YDZV].
158
Id.
159
See also B & B, supra note 31, at 317 (noting that this competitive
strength is buttressed from Ticketmaster’s “access to highly sensitive information”);
infra notes 454–455 and accompanying text.
160
N.Y. A’ G., O V: W’ B N Y
G T 31 (2016), https://ag.ny.gov/sites/default/les/reports/Ticket_
Sales_Report.pdf [https://perma.cc/2ZWL-HE5R].
161
Id.
162
N E C, T C I H
F 11 (2016), https://obamawhitehouse.archives.gov/sites/whitehouse.gov/les/
documents/hiddenfeesreport_12282016.pdf [https://perma.cc/XM9D-WJ9H].
28 Harvard Journal of Sports & Entertainment Law / Vol. 15
It is no surprise, then, that an empirical survey found that 99 percent of
consumers said they thought Ticketmaster’s fees “were too high.”
163
A report
by the U.S. Government Accountability Oce (GAO) in 2018 generally
concluded that 27 percent of ticketing companies’ prices are fees.
164
And an
analysis of “fees on 40 tickets to recent concerts, including [Taylor Swift’s]
Eras Tour” found that “the average fees took up [roughly] 28% of a ticket’s
face value.”
165
ese fees are even more debilitating given that prices “more
than tripled” from the mid-1990s to 2022.
166
Some fans have paid more in fees than the price of the ticket.
167
One art-
ist noted that “[a]lthough many ticketing companies have large fees, in our
experience, Ticketmaster’s are typically the highest, with us having seen as
much as an 82% fee.”
168
One venue owner stated that Ticketmaster “directly
encourages them to further raise ticket fees,” urging: “You know you could
charge more, you could put more into the fee.”
169
For “an April 2016 concert
in Nashville,” for example, Ticketmaster “added a $14.75 fee on top of a
$36 ticket for a show in an amphitheater Live Nation owned,”
170
which the
CEO admitted was “not defendable.”
171
e company’s position as a self-
proclaimed “leading artist management compan[y]” provides an incentive
to not challenge high fees that would benet the artists who gain from the
fees.
172
163
Dent, supra note 115.
164
U.S G’ A O., GAO-18-347, E T S:
M C C P I 6 (2018),
https://www.gao.gov/products/gao-18-347 [https://perma.cc/9VA8-D6AU].
165
Dent, supra note 115.
166
Aswad, supra note 35 (presenting gures based on face value as opposed to
secondary-market price).
167
Alyssa Lukpat, e Cure Says Ticketmaster Will Refund Fans Who Paid “Unduly
High” Fees, W S. J. (Mar. 17, 2023), https://www.wsj.com/articles/the-cure-says-
ticketmaster-will-refund-fans-who-paid-unduly-high-fees-81a6c930?mod=pls_
whats_news_us_business_f [https://perma.cc/2WJR-EULK].
168
at’s the Ticket: Promoting Competition and Protecting Consumers in Live
Entertainment Before the S. Comm. On the Judiciary, 118th Cong. 3 (2023) (state-
ment of Clyde Lawrence, singer-songwriter), https://www.judiciary.senate.
gov/imo/media/doc/Testimony%20-%20Lawrence%20-%202023-01-24.pdf
[https://perma.cc/8DR3-J72V].
169
T C F, supra note 148, at 5.
170
Sisario & Bowley, supra note 84.
171
Id.
172
See supra notes 104–105 and accompanying text.
2024 / e Antitrust Case Against Live Nation Entertainment 29
High fees and prices characterize not only tickets sold on the primary
market but also secondary tickets.
173
e GAO report found that these tickets
are, on average, marked up 31 percent to the buyer in addition to 10 percent
to the seller.
174
One commentator noted that Ticketmaster “makes a much
higher margin on resale tickets” because it “keeps all of the fees it charges—
typically 10 percent of the sale price for the seller and another 20 percent for
the buyer,” in contrast to primary ticket sales, where it keeps a much smaller
percentage.
175
In general, selling in the secondary market, sometimes called “scalping,”
can harm fans by removing seats they may be interested in and “dramatically
173
For a discussion of secondary (or resale) markets, see Mickelson testimony,
supra note 67. Ticketmaster’s interest in the secondary market is heightened because
of the performer’s role in setting price in the primary market. See, e.g., Daniel A.
Rascher & Andrew D. Schwarz, e Antitrust Implications of “Paperless Ticketing” on
Secondary Markets, 9 J. C. L. & E. 655, 694 (2013). is thus diers from
the case in which “an upstream monopolist can extract monopoly rents from the
downstream market... by pricing appropriately in the upstream market,” and reveals
a “true leveraging of the monopolist’s power in the primary market.” Id.
174
U.S. G’ A O., supra note 164, at 6, 18. e fees on the
primary market are lower: 27 percent to buyers and no fees to sellers; see id.
175
Dave Brooks, Taylor Swift’s Eras Tour on Track to Sell $590M in Tickets. Here’s
Where at Money Goes, B (Dec. 16, 2022), https://www.billboard.com/
pro/taylor-swift-eras-tour-ticket-sales-who-gets-paid/ [https://perma.cc/6EEM-
Z6AM]; see id. (noting that fees from primary market are shared with venues and
promoters).
Ticketmaster has admitted that its market share in the secondary market “is likely
in the 20–25% range.” Daniel M. Wall letter to Sen. Jud. Comm., Feb. 14, 2023,
at 13, https://www.livenationentertainment.com/wp-content/uploads/2023/02/
Response-to-Senate-Judiciary-Written-Questions-2.14.23-FINAL1.pdf [https://
perma.cc/9PLS-UQP4]. A 2016 government report noted that Ticketmaster had
the “second-largest market share” of the secondary market. U.S. G’ A-
O., supra note 164, at 4. And a congressional letter in 2021 noted that the
company is “one of the largest ticket resellers in the United States.” Letter from Bill
Pascrell, Jr. et al. to Att’y Gen. Merrick Garland & Acting FTC Chair Rebecca Kelly
Slaughter, Apr. 19, 2021, https://pascrell.house.gov/uploadedles/letter_to_attor-
ney_general_garland_and_acting_chairwoman_slaughter_on_lne_investigation_-_
nal.pdf [https://perma.cc/399N-DH4M]. Live Nation stated in a 2022 ling that
“[o]ur resale business continued to grow, with nearly $4.5 billion... in gross transac-
tion value for 2022, more than doubling resale gross transaction value in 2019.” Live
Nation 10-K, supra note 19, at 31. In terms of a combined ticketing market share
over both primary and secondary ticketing, a Bloomberg analytics service found that
Ticketmaster “earned 65% of U.S. sales among major ticketing platforms in 2022.”
Edgerton & Nylen, supra note 4.
30 Harvard Journal of Sports & Entertainment Law / Vol. 15
increas[ing] the price of these tickets.”
176
e N.Y. report found that the
prices of resold tickets increased by “49% on average” and “sometimes by
more than 1,000%” or even 7,000 percent.
177
In the rst nine months of
2022, “the average secondary ticket price in the U.S.” was “almost twice that
of a primary ticket.”
178
One famous example is Bruce Springsteen’s 2009 tour. Springsteen “had
set ticket prices low on purpose” but Ticketmaster directed fans to a reseller
that charged the fans “hundreds of dollars over face value.”
179
Springsteen
responded: “e abuse of our fans and our trust by Ticketmaster has made us
as furious as it has made many of you.”
180
In response, Ticketmaster’s CEO
apologized.
181
More recent examples oered in 2023 congressional testimony
included Weyes Blood tickets that “have a face value of $25 but are listed on
Ticketmaster for $654/ticket” and Lizzy McAlpine tickets that “have a face
value of $34.50 for the Second Balcony,” but “are listed on Ticketmaster for
$7,193 to $9,371.”
182
e company is not bashful about its high prices. In a 2022 SEC ling,
it boasted of “upward pricing momentum,” a euphemism for higher prices.
183
176
Mickelson testimony, supra note 86, at 8.
177
N.Y. A’ G., supra note 160, at 4.
178
Live Nation Entertainment, ird Quarter 2022 Supplemental Operational
and Financial Information, at 1 (2022) (last visited Nov. 14, 2023), https://d1io3yo-
g0oux5.cloudfront.net/_d2b887510cdc4efb0a99d3749abb92db/livenationenter-
tainment/db/670/6235/supplemental_operational_and_nancial_information/Q3+
2022+Supplemental+Operational+and+Financial+Information.pdf [https://perma.
cc/36F8-26L6].
179
Daniel de Visé, From Pearl Jam to Congress to Springsteen: Five of the Biggest Tick-
etmaster Dustups, T H (Nov. 19, 2022), https://thehill.com/changing-america/
enrichment/arts-culture/3742639-from-pearl-jam-to-congress-to-springsteen-ve-
of-the-biggest-ticketmaster-dustups/ [https://perma.cc/D9RS-A8CF].
180
Id.
181
In 2022, a Springsteen concert again received widespread attention for high
ticket prices, which the N.Y. Times called “e Case of the $5,000 Springsteen
Tickets.” Id.; see Ron Lieber, e Case of the $5,000 Springsteen Tickets, N.Y. T
(July 26, 2022), https://www.nytimes.com/2022/07/26/your-money/bruce-spring-
steen-tickets.html [https://perma.cc/N73Q-MDRN]. In response, Springsteen’s
manager stated that the “average ticket price” was “in the mid-$200 range” and Tick-
etmaster “reported that only 1.3 percent of buyers had paid four gures.” e pricing,
however, led “many Springsteen fans” to “walk[] away from the sale feeling that their
working-class hero had sold out.” de Visé, supra note 179.
182
Mickelson QFR Responses, supra note 118, at 1.
183
Live Nation 10-K, supra note 19, at 31. See also id. (“Overall pricing on our
fee-bearing tickets for the year is up 20% compared to 2019 as consumer demand for
2024 / e Antitrust Case Against Live Nation Entertainment 31
And it proclaimed: “Our fee-bearing ticket sales for the year were a record
breaking 281 million, over 50 million higher than our previous best year.”
184
But Ticketmaster’s gain is fans’ loss. And again, consumers are forced to pay
higher ticketing prices and fees because Live Nation has decided to make its
prots in that market.
185
2. Quality
Perhaps high fees could be the downside of high quality. Alas, that is
not the case. e Taylor Swift asco described in the Introduction is just one
example of the shoddy quality that often has characterized the Ticketmaster
experience. As discussed above, Swift fans suered harms like waiting in a
queue for hours before being kicked out and being prevented from buying
tickets until the general public sale, which was then canceled.
186
Nor is this
an aberration from an especially popular concert. Many fans have suered a
“Ticketmaster horror story” of disappearing tickets and “jumping” prices.
187
In a competitive market, these failings would be followed by rivals gain-
ing market share, Ticketmaster improving its services, or both. Neither of
these has happened. e quality issues have continued, and Ticketmaster has
maintained its dominance over rivals.
e lack of quality is conrmed by the ease with which the Swift disaster
could have been avoided. One approach could have been to “minimiz[e] the
time it takes to compete a transaction by only allowing the fans to choose
‘Best Available’” tickets.
188
Instead, “Ticketmaster decided to slow the process
down by using ‘Pick A Seat’ mode to increase ticket prices,” which increased
the fees it received.
189
e company also could have “[p]ut fewer shows on sale
at the same time” or “stagger[ed] the times the Veried Fans could get into
the queue.”
190
But by “announcing all 52 dates at once,” it “created untenable
premium seats and VIP experiences has continued unabated, occasionally outstrip-
ping supply.”).
184
Id. at 31.
185
See supra notes 146–152 and accompanying text.
186
See supra notes 1–9 and accompanying text.
187
See supra note 10 and accompanying text.
188
Mickelson testimony, supra note 86, at 7.
189
Id.
190
Id. at 8.
32 Harvard Journal of Sports & Entertainment Law / Vol. 15
demand that crashed its website” rather than spreading them out “over the
course of a week, which is often what happens.”
191
None of this is a surprise. A leading Ticketmaster ocial conceded that
the company is “not trying to sell all” of its tickets “in one minute” but is
“trying to gure out how to sell tickets in a more modern way.”
192
Reading
through the corporate-speak, Ticketmaster is trying to slow the process down
to “drive[] the price up since the supply is being manipulated to limit its
release.”
193
Another example of quality harms comes from denying fans entry to
concerts. In December 2022, more than 1,600 fans were turned away from
a Bad Bunny concert in Mexico.
194
e “sold-out stadium’s oor was half
empty” and some fans “scal[ed] the stadium fence after their tickets ... were
rejected as fakes by malfunctioning scanning machines.”
195
Ticketmaster
“claimed that the tickets were counterfeit, but an investigation determined
those allegations to be false.”
196
e incident “caught the attention” of the
President of Mexico, and “[t]he Mexican government secured refunds for
fans and ned Ticketmaster Mexico.”
197
One nal example of inferior quality is presented by bots. A bot is
“software that automates ticket-buying” to “(1) perform each transaction
at lightning speed, and (2) perform hundreds or thousands of transactions
simultaneously.”
198
Bots tend to “crowd out human purchasers and ... snap
up most of the good seats” immediately as tickets are initially listed.
199
For
191
Patel, supra note 117. To the extent any of the decisions in the paragraph in the
text involved Taylor Swift or her promoter, they came after Swift “asked [the com-
pany], multiple times, if they could handle this kind of demand” and “w[as] assured
they could.” McCabe & Sisario, supra note 8.
192
Mickelson testimony, supra note 86, at 7 (quoting Ticketmaster ocial David
Marcus).
193
Id.
194
See Olivia Nacionales, Ticketmaster and Live Nation Know Antitrust Laws
All Too Well, C A & E. L.J. (Mar. 1, 2023), https://cardozoaelj.
com/2023/03/01/ticketmaster-and-live-nation-know-antitrust-laws-all-too-well/
[https://perma.cc/DK9S-G2VC]; Maria Abi-Habib, Spending a Month’s Salary to
See Bad Bunny, Only to Be Turned Away, N.Y. T (Dec. 16, 2022), https://www.
nytimes.com/2022/12/16/world/americas/bad-bunny-ticketmaster-mexico.html
[https://perma.cc/CBE4-9QC2].
195
Abi-Habib, supra note 194.
196
Nacionales, supra note 194.
197
Id.
198
O V, supra note 160, at 8 (emphasis omitted).
199
Id. More specically, bots (1) “constantly monitor ticketing sites to detect the
release, or ‘drop,’ of tickets”; (2) “automate the search for and reservation of tickets
2024 / e Antitrust Case Against Live Nation Entertainment 33
example, for the 2015 U2 tour, bots bought more than 1,000 tickets in
1 minute and 15,000 tickets in one day.
200
Because issues presented by bots play an important role in assessments
of quality and the justications Ticketmaster would oer in support of its
conduct,
201
the next Part addresses them in greater detail.
V. Q C: T-F T B
S T
On the issue of bots and secondary ticketing more generally, Ticketmas-
ter has stated a desire to address the conduct, but it has actively undermined
these purported objectives. is Part shows how Ticketmaster’s ineective-
ness in addressing the bot problem is not an accident.
A. Stated Desire to Address Bots
As far back as the 2010 merger between Live Nation and Ticketmas-
ter, the then-Ticketmaster CEO stated that “scalping and resales should be
illegal” and that there should not “be a secondary market at all.”
202
Since then,
the company has claimed to be engaging in its best eorts to address the issue.
Ticketmaster has stated that the “unauthorized resale of tickets for prot
does not promote fair and equitable distribution of tickets, and drains tickets
away from the primary market, thus restricting the opportunity for genu-
ine fans to purchase them legitimately.”
203
In a securities ling, the company
that are up for sale”; (3) “automate the process of purchasing tickets, using dozens or
hundreds of purchaser names, addresses, and credit card numbers”; and (4) “defeat
the anti-Bot security measures” by being “train[ed]” to “read” CAPTCHAs or
“transmit[ting] in real-time images of the CAPTCHAs... to armies of ‘typers.’” Id.
at 15–17.
200
Id. at 18 g. 6. See also Adam Hetrick, Ticketmaster Sues Scalping Company that
Bought Nearly 30,000 Hamilton Tickets, P (Oct. 4, 2017), https://playbill.
com/article/ticketmaster-sues-scalping-company-that-bought-nearly-30-000-hamil-
ton-tickets [https://perma.cc/C8CL-XS55].
201
See infra note 474 and accompanying text.
202
Robert Cribb & Marco Chown Oved, We Went Undercover as Ticket Scalpers—
and Ticketmaster Oered to Help Us Do Business, T S (Sept. 19, 2018),
https://www.thestar.com/news/investigations/we-went-undercover-as-ticket-scalp-
ers-and-ticketmaster-oered-to-help-us-do-business/article_475cbd40-6c6b-555f-
83a3-7d225694669d.html [https://perma.cc/7HXD-7C39].
203
Id.
34 Harvard Journal of Sports & Entertainment Law / Vol. 15
warned that “[t]he techniques used to obtain unauthorized access, automate
or expedite transactions or other activities on our platform (e.g., “bots”), [or]
disable or degrade service or sabotage systems ... may change frequently and
as a result, may be dicult for our business to detect,” thus “impact[ing] the
ecacy of our defenses and/or the products and services we provide.”
204
For
example, for the Taylor Swift concert in November 2022, “signicant bot
activity in connection with a large ticket onsale signicantly contributed to
a degraded website experience for customers and our eventually needing to
pause the on-sale to address these issues.”
205
Ticketmaster claims to be addressing the problem. It has explained that
it has “expended signicant capital and other resources to protect against and
remedy ... potential security breaches, incidents, and their consequences,
including the establishment of a dedicated cybersecurity organization.”
206
Similarly, a senior Ticketmaster ocial testied that the company “spend[s]
an inordinate amount of time and money defending our site against bots[,]
working with third parties, building our own software, using our new smart-
key platform, and having teams in real-time at every on-sale, trying to iden-
tify bot trac and defend against it.”
207
e company even purports to have
“hands-down the most sophisticated bot ghting technologies in the world,”
doing “more to ght bots than all others in the industry combined.”
208
Along those lines, Ticketmaster’s terms of use, in order to “discourage
unfair ticket buying practices,” provide: “When purchasing tickets on our
Site, you are limited to a specied number of tickets for each event,”
209
which
204
Live Nation 10-K, supra note 19, at 19. See also id. at 2 (“We actively develop
and apply methods to mitigate the impact of... bots.”).
205
Id.
206
Id.
207
N.Y. S S., I R.: L E T P, at 20
(2021), https://www.nysenate.gov/sites/default/les/article/attachment/nys_sen-
ate_igo_committee_report_-_live_event_ticketing_practices.pdf [https://perma.
cc/5NSJ-UVMK]. See also Robert Cribb & Marco Chown Oved, Ticketmaster’s
“TradeDesk” Scalper Tool Explained, T S (Sept. 25, 2018), https://www.
thestar.com/news/investigations/ticketmaster-s-tradedesk-scalper-tool-explained/
article_579131a4-73dd-5369-93e9-09a45a5648d6.html [https://perma.cc/7FY5-
S362] (company “spend[s] a ton of money and a ton of time doing things like build-
ing software that prevents bots from buying tickets” and claims to “have gotten pretty
eective at blocking people from buying lots of tickets”).
208
See Wall, supra note 175, at 5.
209
Purchase Policy, T, https://ticketmaster-us.zendesk.com/hc/en-us/
articles/10465798887953-Purchase-Policy [https://perma.cc/HG2L-B846] (last up-
dated Jan. 1, 2021).
2024 / e Antitrust Case Against Live Nation Entertainment 35
is “typically six or eight seats per buyer.”
210
In addition: “Multiple accounts
may not be used to circumvent or exceed published ticket limits,” and
“[i]f you exceed or attempt to exceed the posted ticket limits,” the company
“reserve[s] the right to cancel, without notice, any or all orders and tickets, in
addition to prohibiting your ticket purchasing abilities.”
211
Similarly, the terms of use allow those accessing the site to obtain a
conditional license only if they do not “[u]se any automated software or com-
puter system to search for, reserve, buy, or otherwise obtain tickets” or “[u]se
any computer program, bot, robot, spider, oine reader, site search/retrieval
application, or other manual or automatic device, tool, or process to retrieve,
index, data mine, or in any way reproduce or circumvent the security struc-
ture, navigational structure, or presentation of the Content or the Site.”
212
Users also must agree not to “[r]equest more than 1,000 pages of the Site
in any 24-hour period,” “[m]ake more than 800 reserve requests on the Site
in any 24-hour period,” or refresh the ticketing page “more than once during
any three-second interval.”
213
e company reserves the right to block users
from buying tickets if they “refresh[] [their] browser too frequently” because
“[o]ur system thinks you’re a bot, an automated program trying to scoop up
tickets, and we automatically block bots!”
214
In addition, a user “may inad-
vertently trigger an error if you’re using a [virtual private network
215
] or other
software that makes it look like you’re using multiple IPs.”
216
210
Cribb & Oved, supra note 202.
211
Purchase Policy, supra note 209.
212
Terms of Use, T, https://ticketmaster-us.zendesk.com/hc/en-us/
articles/10468830739345-Terms-of-Use [https://perma.cc/RNC5-FNJL] (last up-
dated July 2, 2021).
213
Id.
214
Buy Tickets, T, https://help.ticketmaster.com/hc/en-us/
articles/9787702587409-Why-am-I-getting-a-blocked-forbidden-or-403-error-
message- [https://perma.cc/SZB8-TKZC] (last visited Nov. 20, 2023).
215
A virtual private network (VPN) is “an encrypted connection over the In-
ternet from a device to a network.” What Is a Virtual Private Network (VPN)?,
C, https://www.cisco.com/c/en/us/products/security/vpn-endpoint-security-
clients/what-is-vpn.html#:~:text=A%20virtual%20private%20network%2C%20
or,user%20to%20conduct%20work%20remotely [https://perma.cc/2AYK-42U4]
(last visited Dec. 6, 2023).
216
Id.
36 Harvard Journal of Sports & Entertainment Law / Vol. 15
B.
A
ctively Undermining its Purported Objectives
Ticketmaster, in short, talks a good game in its terms of use and claimed
resources addressing bots, but all of these promises must be taken with a
grain of salt. Not only is Ticketmaster not pursuing these objectives, but it
also is directly undermining them. e example that reveals all is TradeDesk,
which Ticketmaster has quietly created to facilitate scalping. TradeDesk is not
“mentioned anywhere on Ticketmaster’s website or in its corporate reports,”
and “[t]o access the company’s TradeDesk website, a person must rst send in
a registration request.”
217
In 2018, CBC and the Toronto Star sent undercover reporters to a live-
entertainment conference where “representatives for Ticketmaster pitched
them on TradeDesk, the company’s invite-only proprietary platform for
reselling tickets.”
218
e reporters “capture[d] a rep on camera saying that
Ticketmaster’s ‘buyer abuse’ team will look the other way when such practices
take place on its own platforms.”
219
e TradeDesk executive admitted: “We don’t spend any time looking at
your Ticketmaster.com account. I don’t care what you buy. It doesn’t matter
to me.... ere’s a total separation between Ticketmaster and our division.
It’s church and state.”
220
e executive understood that if “the ticket limit is
six or eight (seats), you’re not going to make a living.”
221
And if sta detect
“unusual activity in the purchasing patterns of a Trade Desk user, such as the
use of bots,” they wouldn’t “ask for information” as they “don’t share reports”
and “don’t share names.”
222
Undercover reporters “asked a sales executive how
many TradeDesk users have multiple Ticketmaster accounts” and the execu-
tive responded: “I’d say pretty damn near every one of them” as “I can’t think
of any of my clients that aren’t using multiple (accounts).”
223
Journalists found out that “despite the existence of a Ticketmaster ‘buyer
abuse’ division that looks for suspicious online activity in ticket sales,” the
217
Dave Seglins, Rachel Houlihan & Laura Clementson, ‘A Public Relations Night-
mare’: Ticketmaster Recruits Pros for Secret Scalper Program, CBC N (Sept. 19,
2018), https://www.cbc.ca/news/business/ticketmaster-resellers-las-vegas-1.4828535
[https://perma.cc/WGT9-NLGT].
218
Aswad, supra note 35.
219
Id.
220
Cribb & Oved, supra note 202.
221
Id.
222
Id.
223
Cribb & Oved, supra note 207.
2024 / e Antitrust Case Against Live Nation Entertainment 37
company “turns a blind eye to its TradeDesk users who grab lots of tickets.”
224
A sales representative conceded that some brokers have “literally a couple of
hundred accounts” on TradeDesk, and “[it’s] not something that [they] look
at or report.”
225
Further, Ticketmaster’s president of North America opera-
tions conceded that “[w]e probably don’t do enough to look into TradeDesk,”
as “[t]he reality” is that TradeDesk users “could have more than their ticket
limit.”
226
Why doesn’t Ticketmaster “want to catch scalpers using multiple
accounts[?]”
227
Because it has “spent millions of dollars on this tool,” and it
does not want to “get brokers caught up to where they can’t sell inventory
with [Ticketmaster].”
228
According to a Trade Desk sales executive, “[w]e’re
not trying to build a better mousetrap” as “the last thing we want to do is
impair your ability to sell inventory” as that is “our whole goal ... on the
resale side of the business.”
229
Nor is that all. Believe it or not, Ticketmaster provides incentives for
large reselling activity. TradeDesk “brings an immediate 3 percent discount
on Ticketmaster’s usual 7 percent selling fee on a resale ticket.”
230
Users who
“hit $500,000 in sales” get “a percentage point ... shaved o their fees,”
and “[a]t $1 million another percentage point falls o.”
231
Showing how fans
really are not the company’s priority, “[s]calpers get preferential treatment
over consumers.”
232
An “average consumer would not need this software to list
224
Amy X. Wang, Ticketmaster Has Secretly Been Cheating You With Its Own Scalp-
ers, R S (Sept. 19, 2018), https://www.rollingstone.com/pro/news/tick-
etmaster-cheating-scalpers-726353/ [https://perma.cc/2HQL-TRV4].
225
Id.; Ticketmaster’s Statements to CBC News, CBC N, at *7, https://www.
documentcloud.org/documents/4891602-TICKETMASTER-S-STATEMENTS-
to-CBC-NEWS-2FTORONTO [https://perma.cc/TCL7-RLUY] (Ticketmaster
never responded to questions from CBC News on issues such as: why it was impor-
tant to “directly sync a user’s Ticketmaster inventory for online resale” in tension with
the “terms of use and code of conduct that stipulate strict ticket purchasing limits,”
why the company had “a presence at a convention for ticket brokers,” or why “all
Trade Desk users have multiple Ticketmaster accounts, in some cases hundreds of
them, for the purpose of obtaining large quantities of tickets,” with “Ticketmaster
Resale... aware of , and facilitat[ing] that activity without penalty”).
226
Cribb & Oved, supra note 207.
227
Id.
228
Id. See also Seglins et al., supra note 217 (touting TradeDesk as “[t]he most
powerful ticket sales tool. Ever.”).
229
Cribb & Oved, supra note 207.
230
Id.
231
Id.
232
Id.
38 Harvard Journal of Sports & Entertainment Law / Vol. 15
the ticket they could no longer use,” but the incentive structure is employed
“to assist ... scalpers in processing more and more tickets faster.”
233
Just as concerning, public awareness of Ticketmaster’s two-faced behav-
ior does not seem to have stopped the company. ree years after the under-
cover operation was publicized, Ticketmaster returned to “market its services
to ticket resale operations” at the World Ticket Conference in Las Vegas.
234
In short, its claims notwithstanding, Ticketmaster actively encourages
the use of bots and the secondary market to increase the fees it receives.
e discussion in the last two Parts on the widespread harms and the
encouragement of the resale market are important building blocks in the
discussion that follows, which applies antitrust law to the company’s behav-
ior. e next four Parts weave together a story of a multi-pronged attack on
competition utilizing the company’s control of multiple business lines.
First, Live Nation Entertainment engaged in exclusive dealing by lock-
ing up most of the venues able to host large concerts, foreclosing rival tick-
eting services. Second, venues not in exclusive contracts confronted a tying
arrangement that required them to use Ticketmaster’s ticketing if they wished
to book one of Live Nation’s many artists. ird, several of these schemes
were exacerbated by deception. And fourth, an overall course of conduct con-
sisted of all of this activity as well as additional behavior.
235
e next four Parts will describe the elements of each of the oenses.
But one general comment deserves mention. Because the setting is monopo-
lization, “technical requirements” like the tests for “tying and exclusive deal-
ing” are “relax[ed].”
236
A leading hornbook explains that this is mandated
by “the general test for monopolization,” which “requires an exclusionary
practice” that “harms rivals unnecessarily, whether or not the technical tying
[or exclusive dealing] requirements have been met.”
237
233
Id.
234
Dave Clark, Ticketmaster Resale Returns to Broker-Focused Conferences Despite
Past Controversy, T N, https://www.ticketnews.com/2021/07/ticketmaster-
resale-returns-to-broker-focused-conferences-despite-past-controversy/ [https://
perma.cc/YHC3-NLWM] (last visited Nov. 27, 2023).
235
e tying and exclusive dealing claims can be viewed under the umbrella of
“conditional refusals to deal,” which are “actions in which the rights holder expresses a
willingness to deal only if some condition is met.” See Herbert Hovenkamp, FRAND
and Antitrust, 105 C L. R. 1683, 1697 (2020) (explaining that “[t]he basis
for antitrust attacks on conditional refusals is much broader than for unconditional
refusals” and that “[t]ying and exclusive dealing are two common examples”).
236
H, supra note , § 7.6(c), at 406.
237
Id. See also Hovenkamp, supra note 235, at 1701 (“when the defendant has
a dominant position in its own market, then the foreclosure requirement is less
categorical”).
2024 / e Antitrust Case Against Live Nation Entertainment 39
VI.
E
D
e rst claim a plainti could bring is exclusive dealing. is targets
Ticketmaster’s multiyear contracts with venues that block ticketing rivals
from the market and harm competition.
A. Law
An exclusive dealing arrangement “is a contract under which a buyer
promises to buy its requirements ... exclusively from a particular seller.”
238
e primary concern with such an agreement is that it could foreclose a
supplier’s competitors from selling their products to the buyer.
239
“Exclusive
contracts” such as this may represent the “wrongful act” element of monopo-
lization claims.
240
As discussed above,
241
the courts have been more exible when con-
sidering market share and the relevant eects of exclusive dealing claims in
monopolization cases, nding liability “even though the contracts foreclose
less than the roughly 40% or 50% share usually required” to establish a Sec-
tion 1 violation.
242
e reason, as the leading antirust treatise explains, is that
in non-monopolization cases, “a higher foreclosure percentage is necessary to
establish the requisite anticompetitive eects,” but “[w]hen the defendant has
an upstream market monopoly, ... a smaller foreclosure percentage may have
much greater eects.”
243
As a consequence, “the general test for monopoliza-
tion—whether the conduct injured rivals unnecessarily without a sucient
business justication—controls.”
244
238
H, supra note , § 10.9, at 587.
239
A L D, supra note 57, at 208.
240
See U.S. Healthcare, Inc. v. Healthsource, Inc., 986 F.2d 589, 597 (1st Cir.
1993).
241
See supra notes 236–237 and accompanying text.
242
See United States v. Microsoft Corp., 253 F.3d 34, 70 (D.C. Cir. 2001).
243
H H, M D. J, M A. L, & C
R. L, IP A: A A A P A
I P L § .c, at 21–182 (2d ed. 2014).
244
Id. See also A L D, supra note 57, at 254 (“most
courts [that] consider exclusive dealing” begin the analysis by assessing “substantial
foreclosure” and then, “in much the same way as other monopolization claims, con-
ducting a rule of reason analysis to determine if the exclusive dealing conduct caused
anticompetitive harm”).
40 Harvard Journal of Sports & Entertainment Law / Vol. 15
For non-monopolization exclusive dealing cases, Tampa Electric Co. v.
Nashville Coal Co. plays a central role.
245
In that case, the Court put forward a
“qualitative substantiality” approach that requires judges to “weigh the prob-
able eect of the contract on the relevant area of eective competition ... and
the probable immediate and future eects which preemption of that share
of the market might have on eective competition therein.”
246
As a leading
hornbook explains, “[n]early all lower courts today follow Tampa’s suggested
rule of reason approach.”
247
Plaintis generally need to show foreclosure of
30 percent to 40 percent of the market, and once they do, courts analyze
the factors in the Tampa opinion.
248
e extent of foreclosure, however, is
still important. Courts “routinely condemn” agreements foreclosing at least
50 percent of the market “when the practice is complete exclusion by a con-
tract of fairly long duration.”
249
And “[t]he test is not total foreclosure, but
whether the challenged practices bar a substantial number of rivals or severely
restrict the market’s ambit.”
250
In addition to foreclosure, one of the most important factors for analyz-
ing an exclusive dealing arrangement is duration. Agreements with terms that
span a longer time period raise greater concern because they foreclose the
market more substantially.
251
Courts have struck down arrangements lasting
two,
252
three,
253
and ten
254
years.
Contracts with shorter terms are more likely to be upheld, but “when,
as a matter of practical economics, termination is dicult or infeasible,”
courts have invalidated the agreements.
255
In McWane v. FTC, for example,
245
365 U.S. 320 (1961).
246
Id. at 329.
247
H, supra note , § 10.9e, at 596.
248
Id. § 10.9e, at 596 n.307 (citing cases). See infra note 263 for a listing of factors
courts consider.
249
XI H H, A L: A A A P-
T A ¶ 1821c, at 207 n.35 (4th ed. 2018) (citing cases
with 84 percent, 62 percent, and 50 percent foreclosure).
250
United States v. Dentsply Int’l, Inc., 399 F.3d 181, 191 (3d Cir. 2005).
251
A L D, supra note 57, at 216 (citing cases invalidat-
ing agreements lasting one year, ten years, and seven to twenty years).
252
See Mytinger & Casselberry, Inc. v. FTC, 301 F.2d 534, 539 (D.C. Cir. 1962).
253
See L.G. Balfour Co. v. FTC, 442 F.2d 1, 23 (7th Cir. 1971) (upholding FTC
order).
254
See Twin City Sportservice, Inc. v. Charles O. Finley & Co., 676 F.2d 1291,
1308 (9th Cir. 1982); see also FTC v. Motion Picture Advert. Serv. Co., 344 U.S.
392, 393–95 (1953) (one to ve years). See generally XI H, A
L, supra note 249, at 103–04 n.85.
255
A L D, supra note 57, at 217.
2024 / e Antitrust Case Against Live Nation Entertainment 41
the court rejected the argument that a program was “‘presumptively legal’
because it was nonbinding and short-term”
256
on the grounds that distribu-
tors purchasing competing products could lose their accrued rebates and be
unable to purchase the manufacturer’s products.
257
e court found that the
“‘practical eect’” of the program was to “‘make it economically infeasible’”
for distributors to switch to a rival.
258
Similarly, the court in United States v. Dentsply addressed a policy by
which a dominant manufacturer of articial teeth restricted distributors from
dealing with rivals.
259
Even though the defendant sold the product “on an
individual transaction basis,” which was “essentially” an at-will arrangement,
the court recognized that the defendant’s large market share and “its conduct
excluding competing manufacturers ... realistically make the arrangements
here as eective as those in written contracts.”
260
And the court found that,
by “help[ing to] keep sales of competing teeth below the critical level neces-
sary for any rival to pose a real threat to [the defendant’s] market share,”
the arrangements were anticompetitive.
261
As Doug Melamed has generally
explained: “[I]f one manufacturer is uniquely able to use the exclusive agree-
ment to gain or maintain market power (because, for example, it already has
a large market share), it would be uniquely able to share supracompetitive
prots with the distributor” and then could “retain the exclusive arrangement
regardless of the duration of its contract with the distributor or, indeed, with-
out entering into any cognizable agreement at all.”
262
256
783 F.3d 814, 833 (11th Cir. 2015).
257
Id. at 820–21.
258
Id. at 834.
259
399 F.3d 181, 184 (3d Cir. 2005). See also id. at 190 (explaining that defend-
ant “had supremacy over the dealer network” and “has been able to exclude competi-
tors from the dealers’ network”).
260
Id. at 193.
261
Id. at 191. A similar example of companies not having the practical ability
to deal with a dominant rm’s rivals was presented in Lorain Journal Co. v. United
States, 342 U.S. 143 (1951). In that case, a newspaper publisher refused to accept
advertising from parties that had advertised on a local radio station. Id. at 149. e
Court found that, based on the publisher’s signicant market share, the conduct
“forced numerous advertisers to refrain from using [the rival]” and the refusal “often
amounted to an eective prohibition.” Id. at 149–50, 153. See also id. at 153 (noting
that “[n]umerous... advertisers wished to supplement their local newspaper adver-
tising with local radio advertising but could not aord to discontinue their news-
paper adv
ertising in order to use the radio”).
262
A. Douglas Melamed, Exclusive Dealing Agreements and Other Exclusionary
Conduct—Are ere Unifying Principles?, 73 A L.J. 375, 405 (2006).
42 Harvard Journal of Sports & Entertainment Law / Vol. 15
Other factors that courts have examined include the likelihood of indus-
try collusion, the extent to which other rms use exclusive dealing, entry bar-
riers, distribution alternatives, and other anticompetitive or procompetitive
eects.
263
On the last issue, the typical procompetitive justications consid-
ered are “preventi[ng] free riding” and encouraging dealers to more rigorously
promote suppliers’ products.
264
B. Application
Applying the caselaw, Live Nation engages in exclusive dealing in the
form of multiyear contracts by which venues are required to use Ticketmas-
ter’s ticketing service.
Rival ticketing companies are foreclosed from oering their services
to most large venues, which prevents them from eectively competing with
Ticketmaster, depriving them of scale economies, data, and market credibil-
ity that could potentially constrain the market leader.
265
It is generally under-
stood that Ticketmaster has exclusive contracts with 70 percent to 80 percent
of major U.S. venues.
266
e company operates 64 percent of the top U.S.
amphitheaters and 78 percent of the top U.S. arenas.
267
Nor is it just ticketers
that are harmed. For example, during Taylor Swift’s 2022 tour, rival promoter
AEG lamented that “Ticketmaster’s exclusive deals with the vast majority
of venues ... required ... ticket[ing] through their system” and “didn’t
[give them] a choice.”
268
In terms of duration, a senior Ticketmaster ocial testied that the
company “contract[s], usually, a multi-year agreement.”
269
is is not new. As
263
H, supra note , § 10.9e, at 597.
264
Id. § 10.9e, at 598 (citing cases).
265
See supra Part III.C and infra notes 467–469 and accompanying text.
266
See supra notes 115–117 and accompanying text.
267
See supra note 119 and accompanying text.
268
Julian Mark, Taylor Swift’s Ticketmaster Meltdown: What Happened? Who’s
To Blame?, W. P (Nov. 18, 2022), https://www.washingtonpost.com/busi-
ness/2022/11/18/ticketmaster-taylor-swift-faq/ [https://perma.cc/228W-WNGV].
e company’s exclusive dealing arrangements reach expansively. See Golden State
Warriors and Ticketmaster Extend Partnership to Chase Center, T B-
(June 10, 2019), https://business.ticketmaster.com/business-solutions/golden-
state-warriors-and-ticketmaster-extend-partnership-to-chase-center/ [https://perma.
cc/W6WX-VDES] (discussing “exclusive partnerships with thousands of venues, art-
ists, sports leagues, and performing arts centers and theaters”).
269
Joint Public Hearing, supra note 85, at 19.
2024 / e Antitrust Case Against Live Nation Entertainment 43
early as 1994, the Ticketmaster CEO conceded that the exclusive deals “have
durations of three to ve years.”
270
is continues to be the case, as a 2022
company ling makes clear that ticketing companies “will contract with ven-
ues and/or promoters to sell tickets to events over a period of time, generally
three to ve years.”
271
Recently, according to industry insiders, Ticketmaster
has entered into “longer exclusive agreements with venues, sometimes as long
as ten years.”
272
is may have occurred in response to oversight, which has
led the company to “try[] to lock things down so that if there is more pres-
sure, they’ve at least signed a lot of these decade-long deals.”
273
ese long terms are exacerbated by two realities. First, as discussed in
the next Part, is Ticketmaster’s tying of promotion to ticketing.
274
Venues that
wish to book one of the company’s many artists are required to use its ticket-
ing services. As a result, the share of venues contractually conned to Ticket-
master through exclusive dealing understates the share that are unavailable as
a practical matter to ticketing rivals.
Second, Ticketmaster has a renewal rate over 100 percent, which means
that it adds more venues than it loses each year. For example, in the rst half of
2013, the company “had a net client renewal rate in excess of 100%.”
275
Simi-
larly, an industry report from 2016 found “a renewal rate over 100% for the
past six years.”
276
is is further evidence that, at a minimum, an exceedingly
small number of venues (if any) do not renew their contracts with Ticket-
master, which shows a lack of real competition when the agreements expire.
270
B & B, supra note 31, at 135.
271
Live Nation 10-K, supra note 19, at 4.
272
Groetzinger testimony, supra note 102, at 7. See also Brown, supra note 6 (quot-
ing promoter who explained that in the United States, “venues have 5- to 10-year
exclusive contracts with ticketing platforms like Ticketmaster”). See also National
Hockey League and Ticketmaster Announce Landmark 10-Year Deal, C (May 27,
2019), https://www.prnewswire.com/news-releases/national-hockey-league-and-
ticketmaster-announce-landmark-10-year-deal-300857071.html
[https://perma.
cc/8WWN-T
SAT] (ten-year deal with NHL).
273
Video: Sen. Jud. Comm. Hrg., Jan. 24, 2023 (1:30:06-1:30:37), https://
www.judiciary.senate.gov/committee-activity/hearings/thats-the-ticket-promoting-
competition-and-protecting-consumers-in-live-entertainment [https://perma.cc/
YHJ6-7DT2].
274
See infra Part VII.
275
Live Nation Entertainment, Inc., Second Quarter 2013 Supp. Operational
and Financial Info., at 1, Aug. 6, 2013, https://d1io3yog0oux5.cloudfront.net/_
b33a81b8f18a41ae36642223bbc59159/livenationentertainment/db/670/5088/
supplemental_operational_and_nancial_information/Q2+2013+Supplemental+O
perational+and+Financial-Information.pdf [https://perma.cc/2T5H-U52T].
276
Groetzinger testimony, supra note 102, at 9.
44 Harvard Journal of Sports & Entertainment Law / Vol. 15
In addition to harms to ticketers and fans (who are forced to pay higher
prices), the agreements hurt artists—particularly those who are not the most
successful ones—because of the integration of the previously separate worlds
of promotion and venue operation.
277
As one artist explained: “In a world
where the promoter and the venue are not aliated with each other, we can
trust that the promoter will look to get the best deal from the venue.”
278
As
this observer further testied: “Live Nation acts as the exclusive ‘promoter’
for a large percentage of the venues throughout the country, including many,
such as the House of Blues chain, that they own directly,” and “[f]or any of
these venues, when an artist chooses to put on a show there, they have no
choice but to have Live Nation act as the ‘promoter.’”
279
In theory, the promoter “should be a true partner” to the artist: “Since
both our pay and theirs is theoretically a share of the show’s prots, we
should be aligned in our incentives: keep costs low while ensuring the best
fan experience.”
280
But instead, because “the promoter and the venue are part
of the same corporate entity, ... the line items are essentially Live Nation
negotiating to pay itself.”
281
More concretely: “If [Live Nation] want[s] to take
10% of every ticket and call it a ‘facility fee,’ they can (and have); if they want
to charge us $250 for a stack of 10 clean towels[,] they can (and have).”
282
In fact, this collapsing of the roles of promoter and venue reveals the dis-
honesty of Ticketmaster’s attempts to “point the nger at venues and artists
and promoters who set the fees that they end up charging.”
283
e company,
for example, has claimed that the “fees are negotiated with the venue, and
typically set at the venue’s direction,” with Ticketmaster “look[ing] to them
277
Artists also are harmed because those who “want to play a certain size venue in a
particular city... are sometimes left [with] no choice other than to use Live Nation,”
and “if they would like to use another ticketer other than Ticketmaster,... that is not
an option.” Emily Lorsch, Why Live Nation and Ticketmaster Dominate the Live En-
tertainment Industry, CNBC (Jan. 25, 2023), https://www.cnbc.com/2023/01/25/
the-live-nation-and-ticketmaster-monopoly-of-live-entertainment.html [https://
perma.cc/UR5Y-PGZ4].
278
Id.
279
Lawrence testimony, supra note 168, at 1.
280
Id.
281
Id. at 2.
282
Id. See also id. (“[D]ue to Live Nation’s control across the industry, we have
practically no say or leverage in discussing these line items, nor are we aorded much
transparency surrounding them.”).
283
Joint Public Hearing, supra note 85, at 217.
2024 / e Antitrust Case Against Live Nation Entertainment 45
for guidance on what the fee schedule should look like.”
284
All the while, it
“neglect[s] to mention” that “those same promoters and venues and artists,
and Ticketmaster itself, are all owned by the same company, Live Nation
Entertainment.”
285
e company could attempt to oer justications for the agreements.
286
Based on a contract available online, Ticketmaster provides hardware that
includes “up to four (4) POS Terminals,
287
up to four (4) Ticket Printers, one
(1) Access Control Server, one (1) Router, up to two (2) Access Points, [and]
up to three (3) Scanners,”
288
as well as “computerized ticketing software.”
289
e company could claim that it does not wish to have its eorts in develop-
ing the hardware and software exploited by rivals.
e typical procompetitive eects,
290
however, of preventing free riding
and encouraging dealers to more heavily promote suppliers’ products are not
implicated here.
Suppliers often use exclusive dealing to prevent free riding, which
occurs when one retailer takes advantage of another’s promotional activities
and exploits the other’s “facilities or goodwill.”
291
For example, a rm that
develops an expensive product would be less likely to employ showrooms and
knowledgeable employees to demonstrate the product’s features if it knew
that another rm not making similar investments could piggyback on these
services and sell its product at a lower price.
292
284
Id. at 21. See also id. at 36 (“the fees that we charge are typically set by the cli-
ent [the venue]”).
285
Id. at 217.
286
XI H, supra note 249, ¶ 1822e, at 237 (defendant has burden “to
provide sucient evidence of a reasonable justication showing that the exclusive
dealing in question reduces costs or risk or addresses signicant problems of inter-
brand free riding”).
287
A point-of-sale (POS) terminal “is a hardware system for processing card pay-
ments at retail locations.” Clay Halton, Point-of-Sale Terminal: What it is and How
It Works, I (Aug. 23, 2021), https://www.investopedia.com/terms/p/
point-of-sale-terminal.asp [https://perma.cc/2FV9-Q7D2].
288
City of San Gabriel Sta Report from Mark Lazzaretto on Amendment to
Ticketmaster User Agreement to Honorable Mayor and City Council (Feb. 4, 2020),
https://www.sangabrielcity.com/DocumentCenter/View/12408/Item-4D---Ticket-
master-Agreement-for-Ticket-Services-for-the-Mission-Playhouse [https://perma.
cc/4Q5U-6MGC].
289
Id. at 13.
290
See supra note 264 and accompanying text.
291
H, supra note , § 10.9(d), at 593.
292
XI H, supra note 249, ¶ 1812a, at 173.
46 Harvard Journal of Sports & Entertainment Law / Vol. 15
Exclusive dealing arrangements addressing free riding are particularly
important for “luxury brands, new products and services, [and] complex
products and services that are dicult for customers to evaluate without the
provision of technical or other information by the distributor.”
293
In these
cases, the concern is that without an exclusive dealing arrangement, “retailers
would curtail these pre-sale eorts, the producer’s brand goodwill would be
diminished, and interbrand competition would decline.”
294
is is not the case here. e nature of the product demonstrates that
the typical free riding concern is inapt. Ticketmaster is not spending money
to promote its ticketing product, with rivals piggybacking on those eorts.
Nor is it likely that ticketing rivals could oer tickets at lower cost because
they do not pay to promote the event. As discussed above, ticketing fees
have little connection with the services provided.
295
In fact, the company uses
a loss-leader strategy that, as discussed above, involves undercharging in the
promotion market, which is not consistent with needing to exploit invest-
ments in that market.
296
Finally, it is not likely that a venue would steer cus-
tomers to a ticketer other than Ticketmaster to get a bigger revenue share.
Venues initially ocked to—and have stayed with—Ticketmaster because it
increased the fees, shared them with the venues, and took “the bruises from
people who don’t like the process.”
297
Considered expansively, Ticketmaster could claim that rivals could
exploit equipment that is not customer-facing such as ticketing software
and hardware. But the software and hardware are owned and licensed by
Ticketmaster. For example, one contract provides that the “[h]ardware and
[s]oftware is, and shall at all times be and remain, personal property which
shall, at all times, remain the sole and exclusive property of Ticketmaster.”
298
293
Free Riding, C, https://www.concurrences.com/en/dictionary/
Free-riding [https://perma.cc/RR9F-9T7C] (last visited Dec. 18, 2023).
294
Id.
295
See supra notes 161–162 and accompanying text.
296
See supra notes 146–159 and accompanying text.
297
See supra note 35 and accompanying text.
298
Bill No. 2022-15, A Resolution of the City of West Plains, Missouri Author-
izing the City Administrator to Execute an Agreement with Ticketmaster for a ree-
Year Term, enclosing Ticketmaster User Agreement at 11, June 21, 2022, https://
westplains.gov/wp-content/uploads/2022/10/Resolution-2022-15-Ticketmaster.
pdf [https://perma.cc/LP7Y-R3WB]. See also id. at 5 (“is Agreement may be
termi nated by Ticketmaster in the event any act by Principal threatens to cause any
infringement of any Ticketmaster (or Ticketmaster licensor) Intellectual Property or
other property right”).
2024 / e Antitrust Case Against Live Nation Entertainment 47
As a result, venues would not be able to share Ticketmaster’s software
299
or
hardware with rival ticketing companies. Providing one example, the 2010
consent decree required Ticketmaster to make its software available to com-
petitor AEG, allowing the rival to modify the software and providing a license
with “a copy of the source code,” which would not have been needed if rivals
could use the software.
300
ere could be more plausible concerns if the company’s hardware were
shared with a competitor. But the hardware does not seem to be a signicant
cost. Even for small venues, POS terminals,
301
ticket printers,
302
routers,
303
and scanners
304
are not expensive, costing only thousands, or even hundreds,
299
e software links venues’ systems with Ticketmaster’s ticket selling opera-
tion, oering the functionality needed to operate online and oine ticket sales. See
E P, L Q, C B, K H A, & T
C, U S P E, I 14
(2013), https://www.michiganfoundations.org/system/les/documents/2021-09/
Understanding-Software-for-Program-Evaluation-Idealware.pdf [https://perma.cc/
SL8Q-JZX7].
300
[Proposed] Amended Final Judgment, United States v. Ticketmaster Entertain-
ment, Inc., No. 1:10-cv-00139-RMC, at 8-9 (D.D.C. Jan. 8, 2010), https://www.
justice.gov/atr/case-document/le/1233416/dl?inline [https://perma.cc/PUM9-
WYJT]. AEG “never licensed” the software “because, it said, it did not view the
technology as cutting edge.” Sisario & Bowley, supra note 84.
301
See, e.g., David Rivera, How Much Does a POS System Cost, F S B-
(July 18, 2023), https://tsmallbusiness.com/pos-system-cost/ [https://perma.
cc/H9FJ-R33C] (stating that POS systems cost roughly $4,000 to $10,000 annu-
ally); Isobel O’Sullivan, How Much Does a POS System Cost? Hardware, Software &
More, T. (July 28, 2023), https://tech.co/pos-system/pos-system-cost [https://
perma.cc/PRQ5-HB75] (nding that POS system “rang[es] from $1,200 to $6,500
for the rst year, and $600 to $1200 for each subsequent year”).
302
Ticket Printing, TS, https://www.ticketsource.us/features/ticket-
printers [https://perma.cc/6RFS-5RLK] (last visited Jan. 15, 2024) (discussing print-
ers); Citizen America CL-S521-GRY CL-S521 Series Direct ermal Barcode and Label
Printer with USB/Serial Connection, A, https://www.amazon.com/Citizen-
America-CL-S521-GRY-Connection-Resolution/dp/B01CLLPPN2 [https://perma.
cc/GVR8-7PVN] (last visited Jan. 15, 2024); Boca Systems, https://www.bocasys-
tems.com/cong.html [https://perma.cc/HM74-HK4L] (last visited Jan. 15, 2024)
(listing printer costs, with most expensive model costing $3,200).
303
Ry Crist, Best Wi-Fi Routers for 2024, CNET (Jan. 3, 2024), https://www.cnet.
com/home/internet/best-wi--router/ [https://perma.cc/3D9Y-3EYB] (recommend-
ing “best” routers, which range between $75 and $500).
304
e ticket scanners, which are similar in technology to a smartphone, of-
ten cost less than $1,000. San Antonio Stock Show & Rodeo, Scanner Training –
Ticket master Training, YT, https://www.youtube.com/watch?v=jUv8jgu3-kU
[https://perma.cc/K8CC-8PNS] (last visited Jan. 12, 2024); see, e.g., High-Quality
48 Harvard Journal of Sports & Entertainment Law / Vol. 15
of dollars, and not providing substantial value relative to the cost of the soft-
ware. Ticket sales, for example, are dominated by the online market, which
does not even use POS terminals or ticket printers.
305
In 2022, the company
sold 98 percent of its primary tickets online, with only 2 percent sold through
ticket outlets.
306
Nor is the second primary justication present. Ticketmaster is not
oering a product that the venue is directly promoting. In the typical case,
“exclusive dealing leads dealers to promote each manufacturer’s brand more
vigorously,” which could lower “the quality-adjusted price to the consumer
(where quality includes the information and other services that dealers render
to their customers).”
307
Here, in contrast, and as discussed above,
308
ticketing
is not the focus. It is not like the venues are oering ticketing as their primary
product and rivals are piggybacking on the venues’ marketing of Ticketmas-
ter’s services. Rather, they are selling shows, with ticketing just serving as a
means to attain this goal.
e fact that venues benet from exclusive arrangements is not disposi-
tive.
309
Ever since Ticketmaster turned the then-existing business model on
Ticket Scanner, VBO T, https://www.vbotickets.com/site/features/ticket-scan-
ners [https://perma.cc/YCB3-HBVX] (last visited Jan. 12, 2024).
305
Tickets purchased digitally do not need to be printed at the venue, nor is a
point-of sale terminal required. Scanners are used to identify tickets on a mobile
app. See How Do I Use Mobile Entry Tickets?, T, https://ticketmaster-us.
zendesk.com/hc/en-us/articles/9786597785617-How-do-I-use-Mobile-Entry-tick-
ets [https://perma.cc/KR7K-LHLZ] (last visited Jan. 12, 2024).
306
Live Nation 10-K, supra note 19, at 5. e company sold 56 percent through
mobile apps and 42 percent through websites. Id. See also Groetzinger testimony,
supra note 102, at 9 (citing J.P. Morgan report that company’s renewal rate over
100 percent “is explained by realizing that venue owners’ desire to sign with Ticket-
master is less about har
dware or software, and more about lling seats with Live
Nation produced concerts”) (emphasis omitted); see also id. (citing Barron’s report
that company’s “contractual moat” is “compounded by Live Nation’s frequent prac-
tice of installing its own hardware at the venue, using proprietary software to process
tickets”).
307
Roland Mach. Co. v. Dresser Indus., Inc., 749 F.2d 380, 395 (7th Cir. 1984)
308
See supra note 295 and accompanying text.
309
See, e.g., Ticketmaster Corp. v. Tickets.Com, Inc., No. CV99-7654-
HLH(VBKX), 2003 WL 21397701, at *5 (C.D. Cal. Mar. 7, 2003) (nding that
the venues “prefer long-term exclusive contracts” because of compatibility with com-
puters, not needing to change retail outlets, “simplif[ying]... bookkeeping and
reduc[ing] the cost of renegotiating the contracts every few years,” xing costs “for a
longer, more predictable future,” and “obtain[ing] cash up-front from the ticket ser-
vicer... at the cost of a long term contract, so that the ticket servicer may amortize
the cost with the expected income over the years of the contract”).
2024 / e Antitrust Case Against Live Nation Entertainment 49
its head by increasing fees and sharing them with venues, awarding advances,
signing bonuses, and rebates to venues and agreeing to “take the bruises from
people who don’t like the process,”
310
venues have benetted from entering
into exclusive agreements with the company.
311
At a minimum, it is plausible
that exclusive arrangements are not needed to recover investments but instead
entrench control of the market by sharing the spoils with the venues.
312
Along these lines, the setting presents conduct analogous to what has
taken place in the pharmaceutical industry. “Pay for delay” settlements involve
a brand-name drug company settling patent litigation by paying a potential
generic rival to drop its patent challenge and delay entering the market.
313
Such conduct benets the brand rm by ensuring that it can maintain mo-
nopoly prots and the generic rm by providing the certainty of payment
and entry before the end of the patent term.
314
e benets for the settling
parties, however, are not shared by consumers who suer from the absence of
generic drugs when potentially invalid patents
315
avoid scrutiny.
316
Applying a monopolization-centered test that focuses on unnecessarily
injuring rivals would lead to the same result. Exclusive contracts foreclosing
70 percent to 80 percent of venues prevent rivals from exercising a competi-
tive restraint on Ticketmaster and more generally harm the market. And it
would seem to be unnecessary harm. As discussed above, the typical procom-
petitive justications of addressing free riding and encouraging dealer promo-
tion are not implicated here.
317
e setting is dierent from the typical free
riding scenario in which a manufacturer is seeking to protect its investment in
a luxury, new, or complex product. Nor does an exclusive contract lasting ve
310
B & B, supra note 31, at 73. See supra note 35 and accompanying
text.
311
See id.
312
See Melamed, supra note 262, at 405 (explaining that a manufacturer with
market power can “share supracompetitive prots with the distributor” and then
“retain the exclusive arrangement regardless of the duration of its contract” or “with-
out entering into any cognizable agreement at all”).
313
See, e.g., FTC v. Actavis, 570 U.S. 136 (2013).
314
Id. at 154.
315
See C. Scott Hemphill & Bhaven Sampat, Drug Patents at the Supreme Court,
339 S 1386, 1387 (2013) (nding that 89 percent of patents in settled litiga-
tion are secondary patents covering ancillary aspects of drug innovation and that the
brand rm is far less likely to win on these patents (32 percent) than it is on active
ingredient patents (92 percent).
316
E.g., Michael A. Carrier, ree Challenges for Pharmaceutical Antitrust, 59
S C L. R. 615, 632 (2020).
317
See supra notes 290–297 and accompanying text.
50 Harvard Journal of Sports & Entertainment Law / Vol. 15
or ten years with the vast majority of U.S. venues seem necessary to recover
expenditures on software or hardware.
318
Ticketmaster does not need to use
exclusive dealing to prevent free riding or enhance dealer promotion.
319
In short, the unnecessary harm to rivals, substantial foreclosure, entry
barriers, and lack of a procompetitive justication would support a court’s
nding that Live Nation’s exclusive contracts constitute monopolization.
VII. T P T
A second action exacerbating the competitive harms of the rst is tying.
Venues not locked into multiyear exclusive deals could conceivably select
their ticketing provider. But through tying, Live Nation forces venues who
wish to book its artists to use Ticketmaster for ticketing.
320
A. Law
e central element of a tying claim is that a customer who wishes to
purchase one product (the “tying product”) is forced to also purchase a sec-
ond product (the “tied product”).
321
As discussed above, the technical require-
ments of tying are “relax[ed]” in the monopolization setting, with the focus
instead on whether rivals have been harmed unnecessarily.
322
For a full exposi-
tion, this Article analyzes all of the potentially relevant factors.
Some tying arrangements are treated as “per se” illegal. Such a label does
not reect the typical per se approach, for which the existence of the conduct
318
See supra note 306 and accompanying text.
319
ere would be liability under the approach proposed by the leading antitrust
treatise as well. See XI H, supra note 249, ¶ 1822c, at 233 (“where entry
barriers are signicant and foreclosure percentages are substantial, the case for pre-
sumptive illegality is very strong, and the defendant can prevail only by oering proof
of a truly signicant defense”).
320
Artists promoted by Live Nation also could be harmed by the tie. ose with
the largest following who want to perform in certain cities could be limited to one
or a few venues, and even venues not locked into exclusive contracts have no choice
but to use Ticketmaster for their ticketing services. See supra notes 125–126 and
133–135 and accompanying text.
321
See, e.g., Northern Pac. Ry. Co. v. United States, 356 U.S. 1, 5 (1958) (“a tying
arrangement may be dened as an agreement by a party to sell one product but only
on the condition that the buyer also purchases a dierent (or tied) product”).
322
See supra notes 236–237 and accompanying text.
2024 / e Antitrust Case Against Live Nation Entertainment 51
automatically leads to liability.
323
Nor does it reect the more nuanced actual
analysis, which resembles the comprehensive “Rule of Reason” approach.
324
Nonetheless, this Article applies such a framework, which oers elements
that constitute a subset of those making up the related Rule-of-Reason
approach.
325
e per se tying approach requires four elements: (1) two separate prod-
ucts or services; (2) conditioning or coercion to purchase a second product;
(3) sucient market power in the tying product market to restrain trade in
the market for the tied product; and (4) a “not insubstantial” amount of com-
merce in the tied product market.
326
As mentioned, courts also have applied
a Rule-of-Reason analysis to tying arrangements. Although the content of
this framework is “not well dened,”
327
the primary dierence is the inclusion
of a fth element: an “actual eect ... on competition” in the tied product
market.
328
e rst requirement is the existence of two products. In Jeerson Par-
ish Hospital District No. 2 v. Hyde, the Supreme Court explained that the key
inquiry in determining whether there are two products is “the character of the
demand for the two items.”
329
A tie requires the foreclosure of competition
“in a product market distinct from the market for the tying item.”
330
323
See FTC, e Antitrust Laws, https://www.ftc.gov/advice-guidance/competi-
tion-guidance/guide-antitrust-laws/antitrust-laws [https://perma.cc/3KDZ-6LX2]
(last visited Dec. 27, 2023) (noting that “arrangements among competing individu-
als or businesses to x prices, divide markets, or rig bids... are ‘per se’ violations of
the Sherman Act” for which “no defense or justication is allowed”).
324
In re Cox Enterprises, 871 F.3d 1093, 1097 (10th Cir. 2017) (per se tying rule
is “dramatically more nuanced” than the typical per se rule).
325
See infra notes 326–342 and accompanying text.
326
See, e.g., Amey, Inc. v. Gulf Abstract & Title, Inc., 758 F.2d 1486, 1502–03
(11th Cir. 1985); A L D supra note 57, at 176.
327
A L D, supra note 57, at 202.
328
Jeerson Parish Hosp. Dist. No. 2 v. Hyde, 466 U.S. 2, 29 (1984); tying can
be challenged under Section 3 of the Clayton Act or Section 1 of the Sherman Act,
but the test “has evolved so as to be largely the same.” H, supra note ,
§ 7.6(c), at 405.
329
Jeerson Parish, 466 U.S. at 19.
330
Id. at 21.
52 Harvard Journal of Sports & Entertainment Law / Vol. 15
e second factor involves coercion, in other words, “[c]onditioning the
availability of one product ... on the purchase of another.”
331
e Supreme
Court has explained:
Our cases have concluded that the essential characteristic of an invalid tying
arrangement lies in the seller’s exploitation of its control over the tying prod-
uct to force the buyer into the purchase of a tied product that the buyer either
did not want at all or might have preferred to purchase elsewhere on dierent
terms. When such “forcing” is present, competition on the merits in the mar-
ket for the tied item is restrained and the Sherman Act is violated.
332
e third requirement is market power in the tying product market.
333
e
Court in Jeerson Parish stated that the seller has such power when it has a large
market share or oers a unique product that rivals cannot provide.
334
Courts gen-
erally require a market share of at least 30 percent for a nding of market power.
335
One concern with the use of this power is that it could result in “a potentially
inferior product” being “insulated from competitive pressures.”
336
Fourth, there must be a “not insubstantial” amount of commerce in the
tied product.
337
is is typically not an onerous hurdle. e test analyzes “the
absolute dollar amount of the commerce aected” rather than “whether it rep-
resents a substantial share of the market.”
338
e standard is “whether a total
amount of business, substantial enough in terms of dollar-volume so as not to
be merely de minimis, is foreclosed to competitors by the tie.”
339
Courts have
found dollar volumes as low as $1,500 and $6,000 to satisfy this standard.
340
331
A L D, supra note 57, at 182.
332
Jeerson Parish, 466 U.S. at 12.
333
A L D, supra note 57, at 188 (discussing require-
ment of “sucient economic power with respect to the tying product to produce an
appreciable restraint in the market for the tied product”).
334
See Jeerson Parish, 466 U.S. at 17.
335
A L D, supra note 57, at 190. See also Hovenkamp,
FRAND and Antitrust, supra note 235, at 1704 (“tying law usually nds competitive
signicance in market shares in the range of 30% to 40%”).
336
Jeerson Parish, 466 U.S. at 14.
337
Northern Pac. Ry. Co. v. United States, 356 U.S. 1, 11 (1958).
338
A L D, supra note 57, at 196.
339
Fortner Enterprises, Inc. v. U.S. Steel Corp., 394 U.S. 495, 501 (1969).
340
A L D, supra note 57, at 197 (citing cases). See also
Tic-X-Press, Inc. v. Omni Promotions Co. of Georgia, 815 F.2d 1407, 1419–20
(11th Cir. 1987) ($10,091.07 sucient); ompson v. Metro. Multi-List, Inc., 934
F.2d 1566, 1578 (11th Cir. 1991) (range of $30,000 to $70,000 “is clearly substan-
tial”); Bell v. Cherokee Aviation Corp., 660 F.2d 1123, 1130 n.8 (6th Cir. 1981)
(“we are not prepared to say that $40,000 a year is insubstantial”); McAlpine v.
2024 / e Antitrust Case Against Live Nation Entertainment 53
In addition, when applying the Rule of Reason to tying arrangements,
courts have analyzed anticompetitive eects in the tied product market.
Although there is not “a consensus on how much evidence the plainti must
introduce to show the requisite level of foreclosure,”
341
at a minimum, there
must be “some competition in the tied product” that “could be aected by
imposition of the tie.”
342
One example of a tying case bearing some similarity to the facts at issue
here is Nobody in Particular Presents v. Clear Channel Communications, Inc.
343
In that case, a music concert promoter sued Live Nation’s predecessor, SFX,
which (as Clear Channel Communications’ national concert promotions di-
vision) was “the largest concert producer and entertainment promoter in the
nation.”
344
e plainti alleged that “Clear Channel uses its position in rock-
format radio to intimidate and coerce rock artists and their record labels into
signing with SFX/Clear Channel Entertainment and Clear Channel Radio
Festivals for promotion of the artists’ concerts.”
345
In particular, it claimed
that “rock artists and labels are afraid that Clear Channel radio stations will
refuse to give artists’ songs as many spins as Clear Channel would if the artist
signed with SFX/Clear Channel Entertainment or Clear Channel Concerts/
Clear Channel Radio Festivals.”
346
e court rst found that there were two separate products because
the plainti showed that “the demand for rock radio air play and radio pro-
motional support, as evidenced through the existence of ‘indies,’
347
exists
separately from the demand for concert promotional services.”
348
Second,
coercion was demonstrated by the “threat of losing the tying product” based
on “evidence of at least four record labels and/or agents agreeing to the tying
arrangement under threat of losing air play and/or promotional support.”
349
ird, the plainti showed that “Clear Channel’s share of the rock radio
market is suciently high” to show market power.
350
And fourth, there was a
AAMCO Automatic Transmissions, Inc., 461 F. Supp. 1232, 1242 (E.D. Mich.
1978) (same).
341
A L D, supra note 57, at 199.
342
Id.
343
311 F. Supp. 2d 1048 (D. Colo. 2004).
344
Id. at 1056.
345
Id. at 1061.
346
Id.
347
Indies are “independent record promoters that represent record labels.” Id. at
1060.
348
Id. at 1093–94.
349
Id. at 1094.
350
Id. at 1097.
54 Harvard Journal of Sports & Entertainment Law / Vol. 15
“greater than a de minimis” amount of commerce in the market for concert
promotions.
351
e next ve sections demonstrate how a plainti could bring a success-
ful tying case against Live Nation Entertainment for its tying of promotion
and ticketing services.
352
B. Two Products
First, there are two products. As discussed above, promoters “market
events, sell tickets, rent or otherwise provide venues[,] and arrange for local
production services, such as stages and equipment.”
353
In contrast, ticketing
services “generally refers to the sale of tickets primarily through online and
mobile channels” and “also includes sales through phone, outlet, and box
oce channels.”
354
ese dierences are illustrated, for example, by the dispa-
rate services performed by promoter AEG and ticketing company StubHub.
355
As the Court explained in Jeerson Parish, the “character of the demand”
is the key to whether there are two products.
356
In this case, the demand for
artist promotion is quite dierent from the demand for ticketing. Observers
naturally would distinguish between putting on concerts and selling tickets,
and none would reasonably believe they are the same.
357
351
Id. e court found that the plainti did not introduce sucient evidence to
“prove a tying claim under rule of reason analysis.” Id. at 1098.
352
For a discussion of potential justications for the tying arrangement, see infra
notes 472–475 and accompanying text.
353
See supra note 21 and accompanying text.
354
See supra note 24 and accompanying text.
355
For information on AEG, see supra note 103 and accompanying text; for infor-
mation on StubHub, see infra notes 461–462 and accompanying text. e fact that
StubHub primarily operates in the resale market is not material to the dierence
between the ticketing and promotion markets. See also Joint Statement on Ticketmas-
ter, supra note 92 (explaining that ticketing rivals have focused on the secondary mar-
ket because Ticketmaster “has the primary ticket marketplace mostly locked down”).
356
466 U.S. 2, 19 (1984).
357
See, e.g., id. at 23 (noting that “[t]he record amply supports the conclusion
that consumers dierentiate between anesthesiology services and the other hospital
services provided by petitioners”). Promotion and ticketing are, at a minimum, at
least as dissimilar as anesthesiology and other hospital services.
2024 / e Antitrust Case Against Live Nation Entertainment 55
C. Coercion
Second is coercion. Is a venue that wishes to book an artist that Live
Nation promotes forced to take Ticketmaster’s ticketing services?
In the typical case, a plainti alleges a lack of choice. It claims that it
wants the tying product and is forced to take the tied product. e question
is whether it really is forced to make this purchase. is case is dierent. For
a plainti would have not just a claim of coercion but actual evidence. is
evidence is front and center in the DOJ’s motion to extend the 2010 consent
decree.
Recognizing the potential harm from a merger between Ticketmaster
and Live Nation, the decree “prohibited the merged company from retaliat-
ing against concert venues for using another ticketing company” or “condi-
tioning or threatening to condition Live Nation’s provision of concerts and
other live events on a venue’s purchase of Ticketmaster’s ticketing service.”
358
In its motion to extend the decree in 2020, the DOJ pulled no punches,
stating that the merging companies “failed to live up to their end of the
bargain.”
359
In particular, they “repeatedly conditioned and threatened to
condition Live Nation’s provision of live concerts on a venue’s purchase of
Ticketmaster ticketing services” and “retaliated against venues that opted to
use competing ticketing services—all in violation of the plain language of
the decree.”
360
In fact, the companies’ “well-earned reputation for threaten-
ing behavior and retaliation ... has so permeated the industry that venues
are afraid to leave Ticketmaster lest they risk losing Live Nation concerts,
358
Plainti United States’ Mem. in Supp. of Mot. To Modify Final J. and Enter
Am. Final J. 1 (hereinafter Memorandum in Support), Case 1:10-cv-0039-RMC,
https://www.justice.gov/atr/case-document/le/1233396/download [https://perma.
cc/XM6R-DJQ6]. For a discussion of other conditions of the decree, see supra note 50.
359
Memorandum in Support, supra note 358, at 1. See also Justice Department
Moves to Modify and Extend Consent Decree, supra note 16 (extending decree ve-
and-one-half years and including new provisions on, among other issues, threats,
withholding concerts, an independent monitor, an antitrust compliance ocer, and a
penalty). For an argument that the terms of the extension were “tepid,” see Katherine
Van Dyck & Lee Hepner, e Case Against Live Nation-Ticketmaster, at 6, A. E.
L P (Jan. 2024), http://www.economicliberties.us/wp-content/
uploads/2024/01/20240104-AELP-Livenation-Brief-FINAL.pdf [https://perma.
cc/TD3S-ZRH2] (lamenting a “revised consent decree that did not strengthen or
otherwise expand any of the behavioral remedies,” that “assessed a paltry $3 million
ne,” and that “created opaque monitoring and compliance programs that do little
to protect venues, artists, and fans”).
360
Id.
56 Harvard Journal of Sports & Entertainment Law / Vol. 15
hindering eective competition for primary ticketing services.”
361
e DOJ
provided six examples in its motion to extend the decree.
In one, while evaluating ticketing services, a venue “informed Live
Nation that it was planning to choose Ticketmaster’s competitor.”
362
At that
point, a senior ocial at the company “threatened to withhold all Live Nation
concerts ... if it did not renew its contract with Ticketmaster,” warning: “if
you move in that direction, you won’t see any Live Nation shows.”
363
Despite
these threats, the venue “selected a Ticketmaster competitor,” at which point
“Live Nation stopped contacting the arena about any possible concerts or
booking shows.”
364
When the venue agreed to contract with Ticketmaster a
short time later, “Live Nation began to get ‘geared back up’ to bring concerts”
because the venue was “back in the family.”
365
e other ve examples are similar:
• A Live Nation promoter “explicitly threatened to withhold
concerts from Venue A if it did not select Ticketmaster”
366
;
• “[I]f Venue C went with a competing ticketer, Ticketmaster’s
response ‘would be “nuclear”‘ and ‘though [the ocial] would
deny it ... Live Nation would never do a show in our building
... [and] would nd other places for their content’”
367
;
• A senior Ticketmaster executive “reiterated his threat that if
Venue D went with another primary ticketing provider, Live
Nation would pull concerts . . . and reduce the volume of
shows”
368
;
• Two Live Nation executives “threatened that Venue E would not
get Live Nation shows unless it switched to Ticketmaster,” and
“[w]hen Venue E refused to switch ... Live Nation followed
361
Id. at 1–2. See also Sisario & Bowley, supra note 84 (quoting former Ticket-
master executive who conceded: “We were not saying, certainly, ‘If you don’t go with
us you are losing’” artists, but “‘I would imagine that that is what [arenas] assumed
to be the case.’”). See also Memorandum in Support, supra note 358, at 6 (venues
“c[a]m[e] to expect that refusing to contract with Ticketmaster” would “result in the
venue receiving fewer Live Nation concerts or none at all”).
362
Id. at 8.
363
Id.
364
Id.
365
Id.
366
Id. at 7.
367
Id. at 8–9.
368
Id. at 9.
2024 / e Antitrust Case Against Live Nation Entertainment 57
through on its threats and retaliated ... by reducing the number
of concerts”
369
; and
• “Immediately after learning that Venue F had switched ticketers,
Ticketmaster’s President contacted the local Live Nation
President responsible for placing concerts in the region to
suggest that Live Nation book more shows at Venue F’s nearby
rival venue”; “[i]n the two years following .. . Live Nation
signicantly reduced the number of shows ... in retaliation.”
370
Consistent with these instances are two examples discussed above: the
Gwinnett Center and Barclays Center having their tours cut in half after
deciding not to use Ticketmaster for ticketing.
371
In fact, SeatGeek, which
lost its contract with the Barclays Center, structures some bids to address
venues’ concerns about losing top artists. In 2017, when the company “tried
to unseat Ticketmaster from its contract at the TD Garden in Boston, it
included in its bid a promise to pay the arena $250,000 for every show that
Live Nation pulled.”
372
Ticketmaster still won the contract, with SeatGeek
explaining that when it “sell[s] to teams,” it has “heard fears about losing
concerts if they choose us.”
373
In the typical tying case, it may not be clear if there actually is coercion.
is case is dierent because we have the receipts: numerous examples of Live
Nation threatening, and following through on threats, not to have shows at
venues that use a ticketing service other than Ticketmaster.
D. Market Power in Tying Product Market
As discussed above, Live Nation has market power in the market for
the tying product: artist promotion. For starters, there is direct evidence of
market power. e fact that Live Nation was able to coerce unwilling venues
to deal with Ticketmaster in order to have access to Live Nation’s artists shows
its control of the market.
ere also is compelling indirect evidence of market power. ere are
a limited number of artists capable of lling large arenas and amphitheaters,
and Live Nation has roughly 60 percent to 80 percent of this promotion
369
Id. at 10.
370
Id.
371
See supra notes 136–143 and accompanying text.
372
Sisario & Bowley, supra note 84.
373
Id.
58 Harvard Journal of Sports & Entertainment Law / Vol. 15
market.
374
In its own words: “We believe we are one of the world’s leading
artist management companies based on the number of artists represented.”
375
Live Nation “typically locks up much of the best talent by oering gen-
erous advances to artists and giving them a huge percentage of the ticket
revenue from the door.”
376
It “can aord to” because it “has so many other
related revenue streams on which to draw: sponsorships for the tour, con-
cessions at venues, and most of all, ticket fees,” which “supply about half of
Live Nation’s earnings.”
377
As discussed above, this is part of its “loss leader”
strategy by which it is willing to lose money on promotion and make up for
it with ticketing.
378
One analyst explained that “[t]here’s really no one that’s been able to get
the type of scale that Live Nation has. e closest comparable is [AEG] with
their own kind of internal ticketing platform. But they made a statement
that speaks to the market power of Ticketmaster, which is that they used
Ticketmaster to ticket Taylor Swift.”
379
It’s “a business that a lot of people
have looked at,” but even though “[t]hey’ve spoken about wanting to get into
it, ... no one’s really been able to grab enough market share to really be a
meaningful player.”
380
Given the signicant quality issues with Ticketmaster’s
services,
381
rivals’ inability to gain market share reects “a potentially inferior
product” being “insulated from competitive pressures.”
382
A nal way of considering the company’s power in the promotion mar-
ket is to compare its size with that in the ticketing market. In the rst three
quarters of 2023, while Ticketmaster’s ticketing revenue was $2.2 billion,
Live Nation’s concert business was $13.9 billion, more than six times larger.
383
In other words, the company’s signicant market share in the promotion
market is buttressed by a staggering amount of revenue.
374
See supra notes 100–102 and accompanying text.
375
See supra note 104.
376
Sisario & Bowley, supra note 84.
377
Id.
378
See supra notes 146–152 and accompanying text.
379
Lorsch, supra note 277.
380
Id.
381
See discussion supra Part IV.B.2.
382
See supra note 336 and accompanying text.
383
2023 Live Nation Entertainment Form 10-Q, supra note 153, at 20.
2024 / e Antitrust Case Against Live Nation Entertainment 59
E. Commerce
Whether Ticketmaster’s ticketing market oers a “not insubstantial”
amount of commerce barely deserves discussion. Controlling the majority
of ticket sales in the country obviously exceeds a threshold that courts have
found to be satised by a few thousand dollars. Live Nation Entertainment’s
ticketing revenue in 2022 was $2.2 billion.
384
F. Anticompetitive Eects in Tied Market
Considering the nal factor—relevant to a Rule-of-Reason analysis—of
anticompetitive eects in the tied market would not alter the analysis. Rival
ticketing companies are injured by being deprived of the opportunity to com-
pete for venues that wish to have access to Live Nation’s many artists. And
that injury weakens the competitive discipline they exercise against Ticket-
master. Venues that stick with, or switch back to, Ticketmaster show that the
tying materially raises the obstacles facing competitors. e lack of eective
rivals allows Ticketmaster to continue to harm competition.
e company has leveraged its signicant market power (such as ticket-
ing 80 percent of the top 100 arenas in the country
385
) to impose high prices
and fees that have harmed artists, venues, and promoters.
386
Consumers have
suered anticompetitive eects in the form of high fees and inferior quality.
Just to repeat two examples,
387
ticketing prices “more than tripled” from
the mid-1990s to 2022
388
and 99 percent of consumers believe Ticketmas-
ter’s fees are “too high.”
389
Consumers have suered by not being able to buy
tickets, being denied entry to concerts, and suering numerous other qual-
ity harms.
390
If Ticketmaster faced the additional competition from other
384
Live Nation 10-K, supra note 19, at 5. at gure is only increasing. See Dylan
Smith, Live Nation Touts “Biggest Quarter Ever” in Q3 Earnings Report As Revenue Tops
$8 Billion, D M N (Nov. 3, 2023), https://www.digitalmusicnews.
com/2023/11/03/live-nation-earnings-q3-2023/ [https://perma.cc/SU43-5TVB]
(noting $832.6 million in revenue in third quarter of 2023, up 57 percent over the
previous year).
385
Sisario & Bowley, supra note 84.
386
See discussion supra Part IV.
387
See discussion supra Part IV.B.1.
388
See supra note 166 and accompanying text.
389
See supra note 163 and accompanying text.
390
See discussion supra Part IV.B.2.
60 Harvard Journal of Sports & Entertainment Law / Vol. 15
ticketers that it would face without the tying coercion, it would not be able
to so aggressively increase price and neglect quality.
In short, each of the ve requirements for a claim that Live Nation
Entertainment tied promotion to ticketing is satised.
If the inquiry focuses more specically on whether the conduct “injures
competition unnecessarily,”
391
the company also would be liable. It is evident
that competition from rival ticketing companies is injured. And this injury
does not seem to be linked to any legitimate justication. e company, for
example, has never shown that Ticketmaster’s ticketing must be used because
its rivals are unreliable or do not provide the level of services that Ticketmas-
ter does. Even if there were concerns about bots and inferior quality with
other companies (which, again, have not been shown), Ticketmaster’s two-
faced treatment, illustrated by the TradeDesk smoking gun,
392
shows that this
is a pretense.
VIII. D
A third claim would target Ticketmaster’s deception of consumers in
various aspects of its ticketing services.
A. Law
A court could nd that deception constitutes monopolization under one
of two approaches.
393
e rst, adapted from the leading antitrust treatise,
394
391
See supra notes 236–237 and accompanying text.
392
See discussion supra Part V.B.
393
A third approach, applied in the Fifth and Seventh Circuits, does not apply
liability in this setting. For a critique of such a hands-o analysis, see Michael A. Car-
rier, Don’t Die! How Biosimilar Disparagement Violates Antitrust Law, 115 N. U.L.
R. O 119, 135 (2020) (a monopolist engaging in deception “could entrench
its position in the market” with conduct that “could be viewed as ‘tend[ing] to impair
the opportunities of rivals’ and ‘not further[ing] competition on the merits,’” and
that “resemble[s] more the ‘willful acquisition or maintenance of [monopoly] power’
than a ‘superior product, business acumen, or historic accident’”) (citing United
States v. Grinnell Corp., 384 U.S. 563, 570–71 (1966) and Aspen Skiing Co. v.
Aspen Highlands Skiing Corp., 472 U.S. 585, 605 n.32 (1985)). See also Michael A.
Carrier & Rebecca Tushnet, An Antitrust Framework for False Advertising, 106 I
L. R. 1841, 1850–53 (2021) (providing additional critique).
394
P E. A & H H, A L: A A
A P T A (5th ed. 2022).
2024 / e Antitrust Case Against Live Nation Entertainment 61
applies a presumption that the exclusionary eects of disparagement are
de minimis.
395
e plainti can rebut such a presumption by showing that
the alleged anticompetitive conduct is (1) clearly false, (2) clearly material,
(3) clearly likely to induce reasonable reliance, (4) made to buyers without
knowledge of the subject matter, (5) continued for prolonged periods, and
(6) not readily susceptible to neutralization or other osets by rivals.
396
A second approach applies a more general case-by-case analysis. Courts
applying this approach have appreciated that anticompetitive conduct takes
“too many dierent forms, and is too dependent upon context, for any court
or commentator ever to have enumerated all the varieties.”
397
For example,
the Sixth Circuit in Conwood v. U.S. Tobacco found that a company’s provid-
ing misleading information, destroying a rival’s display racks, and entering
into exclusive agreements could support a nding of monopolization.
398
One factor that courts have analyzed in this setting is the extent to which
false statements lock in decision-making. In United States v. Microsoft, the
D.C. Circuit found that Microsoft’s deceptive statements to Java-based soft-
ware developers about the interoperability of Windows-based systems with
other platforms resulted in the inadvertent development of software compat-
ible only with Windows and demonstrated anticompetitive conduct.
399
B. Facts
An antitrust case could challenge several actions as potentially deceptive
conduct that sustained its monopoly position.
400
395
See Carrier, supra note 393, at 135 (citing cases from the Second, Sixth, Ninth,
Tenth, and Eleventh Circuits).
396
E.g., Duty Free Americas, Inc. v. Estee Lauder Companies, Inc., 797 F.3d 1248,
1269 (11th Cir. 2015). See generally Carrier, supra note 393, at 136–37 (discussing
illustrative case in which court found that plainti satised test).
397
E.g., Caribbean Broad Sys. v. Cable & Wireless PLC, 148 F.3d 1080, 1087
(D.C. Cir. 1998).
398
Conwood Co., L.P. v. U.S. Tobacco Co., 290 F.3d 768, 783, 788 (6th Cir.
2002).
399
253 F.3d 34, 76–77 (D.C. Cir. 2001).
400
A challenge by the FTC to this behavior could rely on not only monopoliza-
tion but also Section 5 of the FTC Act, which provides that “unfair or deceptive
acts or practices in or aecting commerce... are... declared unlawful.” 15 U.S.C.
§ 45(a)(1) (2006). e FTC’s Policy Statement on Deception denes deception as
“a representation, omission, or practice that is likely to mislead the consumer acting
reasonably in the circumstances, to the consumer’s detriment.” Letter from James
C. Miler, FTC Chairman, FTC Policy Statement on Deception (Oct. 14, 1983),
62 Harvard Journal of Sports & Entertainment Law / Vol. 15
An example of one set of behaviors stems from a 2010 settlement with
the FTC concerning “deceptive bait-and-switch tactics to sell event tickets
to consumers.”
401
In its statement accompanying the settlement, the FTC
explained that consumers looking for tickets to concerts to Bruce Springsteen
& e E Street Band received a “No Tickets Found” message that “indicate[d]
that no tickets were available at that moment to fulll their request.”
402
Tick-
etmaster then deceptively “steer[ed] unknowing consumers” to its resale site
TicketsNow, where “tickets were oered at much higher prices—in some
cases double, triple, or quadruple the face value.”
403
According to the FTC,
Ticketmaster “displayed the same misleading Web page to consumers looking
to buy tickets for many other events between October 2008 and February
2009.”
404
In addition to misrepresenting the existence of tickets, Ticketmaster
“[c]ompound[ed] this deception” by “fail[ing] to tell buyers that many of
the resale tickets advertised on TicketsNow.com were not ‘in hand’—in
other words, they were not actual tickets secured for sale at the time they
were listed and bought.”
405
Some of the tickets were “sold speculatively,”
which meant they were “merely oers to try to nd tickets.”
406
e FTC
provided the example of consumers “hoping to go to a Springsteen concert
at the Verizon Center in Washington, DC in May 2009” paying for tickets
in February “that never materialized” while “Ticketmaster kept the sales pro-
ceeds for more than three months without a reasonable basis for believing it
could fulll the orders.”
407
Although the conduct is not recent, it provides an example of how
deception-based tests could apply. Applying the treatise framework, given the
availability of tickets, a representation that there are no tickets is clearly false.
It is material as consumers wind up paying signicantly more for tickets.
Because fans must depend on Ticketmaster for information, they have no
https://www.ftc.gov/system/les/documents/public_statements/410531/831014dec
eptionstmt.pdf [https://perma.cc/ERZ3-YPPV].
401
Press Release, Fed. Trade Comm’n, Ticketmaster and TicketsNow Settle FTC
Charges of Deceptive Sales Tactics, Refunds for Springsteen Concertgoers Provided;
FTC Warns Other Ticket Resellers (Feb. 18, 2010), https://www.ftc.gov/news-events/
news/press-releases/2010/02/ticketmaster-ticketsnow-settle-ftc-charges-deceptive-
sales-tactics-refunds-springsteen-concertgoers [https://perma.cc/6ZMZ-2SFZ].
402
Id.
403
Id.
404
Id.
405
Id.
406
Id.
407
Id.
2024 / e Antitrust Case Against Live Nation Entertainment 63
knowledge of which tickets are available and reasonably rely on Ticketmaster.
Finally, the deception continued for a long period, with the opaque nature of
the transactions preventing neutralization by rivals.
is behavior also would seem to result in liability under a case-by-case
approach. Similar to the Microsoft case, false statements related to ticket avail-
ability lock in decision-making.
408
is is especially the case given the infor-
mation asymmetry between the fans and Ticketmaster, materiality of ticket
availability, and reasonable reliance on the company.
Another example is presented where buyers are not made aware of
whether tickets are “eligible for transfer” until after purchase and where Tick-
etmaster could use the lack of notice to harm rival resale ticketers.
409
Consum-
ers reasonably expect that they can resell their tickets, and when there is no
notice to the contrary, it could be deceptive to prevent transfers.
One example is provided by a 2019 show in Los Angeles involving the
Black Keys. For this concert, the “transferability feature [was] turned o
completely,”
410
and the venue would not accept tickets issued by third-party
ticketers.
411
Fans did not receive any “notice that their tickets were no good,
even as they waited in line.”
412
Employees of the resale vendors said that Tick-
etmaster never indicated that tickets would not be transferable.
413
And Poll-
star, a leading provider of information on the concert industry, “was unable
to nd any mention that tickets purchased via the secondary market would
be banned in any of the announcements regarding the presales and general
onsale for the gig.”
414
One employee of a resale site had “never seen something
like this happen” and explained that it was “unfair ... because everyone had a
valid ticket.”
415
Ticketmaster acknowledged its failings in the process, stating
408
See United States v. Microsoft Corp., 253 F.3d 34 (D.C. Cir. 2001); see also
supra note 399 and accompanying text.
409
See How Do I Transfer Tickets?, T, https://ticketmaster-us.zendesk.
com/hc/en-us/articles/9612097694481 [https://perma.cc/FJ6C-LB5S] (last visited
Nov. 24, 2023).
410
Sarah Pittman, e Black Keys’ Wiltern Snafu rusts SafeTix Into Spotlight,
P (Sept. 26, 2019), https://news.pollstar.com/2019/09/26/the-black-keys-
wiltern-snafu-thrusts-safetix-into-spotlight/ [https://perma.cc/8V6V-WZSL].
411
See Alejandra Reyes-Velarde, Why the Black Keys Shut Out Hundreds of Fans,
Causing Chaos at the Wiltern, L.A. T (Sept. 20, 2019), https://www.latimes.com/
california/story/2019-09-20/black-keys-wiltern-tickets-ticketmaster [https://perma.
cc/8RVM-NQUY].
412
Id.
413
Id.
414
Pittman, supra note 410.
415
Reyes-Velarde, supra note 411.
64 Harvard Journal of Sports & Entertainment Law / Vol. 15
that for future “communicat[ions about] the non-transferability process,” it
promised to “ensure that this messaging is more prominently and frequently
communicated moving forward.”
416
Two episodes of deception were alleged in a complaint led in 2018
in a case that ultimately settled.
417
Proof of these allegations would provide
additional examples.
First, plaintis claimed that Ticketmaster harmed fans through its web-
site, which “seamlessly integrate[d] its primary and secondary ticket exchange
inventory in a single seating map.”
418
e company “provide[d] no transpar-
ency to consumers about how and why tickets wind up on one or another
exchange,” and Ticketmaster and its suppliers “deceptively slip[ped] tickets
between primary and secondary markets to manipulate consumer pricing and
squelch competition.”
419
In addition to the deception, whether fans use the
primary or secondary market is material: the fees generally are higher in the
secondary market, and the proceeds are kept by the ticketing company as
opposed to being shared with the venues and promoters.
420
Second, Ticketmaster allegedly “sabotage[d] its [former] Veried Fan
program,
421
which it publicized as a means to provide special advance tickets
to a special set of consumers with codes, by releasing the same tickets for sale
simultaneously at the box oce, without requiring any special code, and with
full knowledge that ticket resellers will sta the box oce to purchase the
ticket immediately.”
422
Similarly, fans trying to see a show at Madison Square
416
Pittman, supra note 410.
417
Answer of Renaissance Ventures LLC and Prestige Entertainment West Inc.
to Second Amended Complaint and Counterclaims, Ticketmaster LLC v. Pres-
tige Entertainment West, Inc., No. 2:17-cv-07232-ODW-JC (C.D. Cal. June 25,
2018). For the settlement of the case, see Jerey D. Neuberger, Ticketmaster Reaches
Settlement with Ticket Broker over Unauthorized Use of Automated Bots, N’ L.
R. (July 24, 2019), https://www.natlawreview.com/article/ticketmaster-reaches-
settlement-ticket-broker-over-unauthorized-use-automated-bots [https://perma.
cc/4S5W-2KW9].
418
Renaissance Answer, supra note 417, ¶ 4.
419
Id.
420
See supra note 175 and accompanying text.
421
In 2023, “[f]ollowing a tidal wave of bad press (and several lawsuits) stemming
from the Taylor Swift Eras Tour pre-sale asco,” Ticketmaster “quietly rebranded its
‘Veried Fan’ program as ‘advance registration.’” Dylan Smith, Ticketmaster Qui-
etly Replaces Its “Veried Fan” Program With “Advance Registration” Following Taylor
Swift Pre-Sale Disaster, D M N (June 20, 2023), https://www.digital-
musicnews.com/2023/06/20/ticketmaster-advance-registration/ [https://perma.cc/
EU6P-ZNVU].
422
Renaissance Answer, supra note 417, ¶ 9.
2024 / e Antitrust Case Against Live Nation Entertainment 65
Garden in New York noticed that “[i]mmediately after the tickets went on
sale” for a concert utilizing the program, “there were hundreds of tickets on
StubHub.”
423
is behavior could be deceptive in oering a program that it
claimed was introduced to benet fans
424
but actually is used to mask activity
in the resale market.
At a minimum, behavior like that at the heart of the 2010 settlement
with the FTC, as well as instances of a lack of notice in the years since, could
demonstrate deception that maintains the company’s monopoly position.
IX. O C C
Finally, a court could consider the entirety of Live Nation Entertain-
ment’s conduct together. is includes not only the conduct discussed in the
previous three Parts but also additional behavior discussed in Section IX.B
below.
A. Law
Courts have considered defendants’ conduct not only for its particular
elements but also as part of an overall course of conduct.
425
e Supreme
423
Brando Rich, Is TicketMaster’s Veried Fan Program Working for Real Fans?,
CT (Sept. 19, 2017), https://cashortrade.org/blog/is-ticketmasters-ver-
ied-fan-program-working-for-real-fans [https://perma.cc/AWL5-XYXT]; see id.
(stating that it was “hard to believe that hundreds of fans bought these tickets only to
turn around and resell them immediately”).
424
See Anne Steele, Ticketmaster Asks: Are You a Big Enough Fan?, W S. J.
(Sept. 5, 2017), https://www.wsj.com/articles/ticketmaster-asks-are-you-a-big-
enough-fan-1504636200 [https://perma.cc/R8C8-CVW9] (senior ocial at Ticket-
master states: “[i]nstead of ghting an arms race, we decided we could take advantage
of a deep database of info on ticket buyers and identify the behaviors that real fans
exhibit”).
425
See also, e.g., LePage’s Inc. v. 3M, 324 F.3d 141, 162 (3d Cir. 2003) (“e rel-
evant inquiry is the anticompetitive eect of 3M’s exclusionary practices considered
together.”); In re Suboxone (Buprenorphine Hydrochloride & Naloxone) Antitrust
Litig., 13-MD-2445, 2017 WL 36371, at *8 (E.D. Pa. Jan. 4, 2017) (“in certain
circumstances, a plainti can allege a series of actions that when taken together make
out antitrust liability even though some of the individual actions, when viewed inde-
pendently, are not all actionable”); In re Gabapentin Pat. Litig., 649 F. Supp. 2d 340,
359 (D.N.J. 2009) (“If a plainti can allege that a series of actions, when viewed to-
gether, [was] taken in furtherance and as an integral part of a plan to violate the anti-
trust laws, that series of actions, as an overall scheme, may trigger antitrust liability.”);
66 Harvard Journal of Sports & Entertainment Law / Vol. 15
Court has explained that “plaintis should be given the full benet of their
proof without tightly compartmentalizing the various factual components
and wiping the slate clean after scrutiny of each.”
426
In these cases, it is appro-
priate to consider the “overall combined eect” of individual acts as courts “are
dealing with what has been called the ‘synergistic eect’ of the mixture of the
elements.”
427
Application of this theory makes particular sense when multiple
behaviors “harm[] competition only slightly” but create a “cumulative eect”
that “is signicant enough to form an independent basis for liability.”
428
Spe-
cic acts might not fully support a monopolization claim on their own but
might in combination, especially when one compounds the eect of another
so that the aggregate conduct crosses the line into monopolization.
To fully assess the competitive eects of this range of behavior, an over-
all course of conduct claim could be considered under the Rule-of-Reason
framework. e D.C. Circuit in United States v. Microsoft articulated such an
analysis. First, the plainti “must demonstrate that the monopolist’s conduct
... has the requisite anticompetitive eect.”
429
Second, if this is shown, the
defendant “may proer a ‘procompetitive justication’ for its conduct.”
430
e
plainti then can rebut that justication, and failing that, can “demonstrate
In re Neurontin Antitrust Litig., 2009 WL 2751029, at *15 (D.N.J. Aug. 28, 2009)
(same); Abbott Labs. v. Teva Pharm. USA, Inc., 432 F. Supp. 2d 408, 428 (D. Del.
2006) (“Plaintis are entitled to claim that individual acts are antitrust violations,
as well as claiming that those acts as a group have an anticompetitive eect even if
the acts taken separately do not.”). But see New York v. Facebook, Inc., 549 F. Supp.
3d 6, 46 (D.D.C. 2021) (doctrine does “not allow unilateral refusals to deal that are
lawful... to be considered as part of a ‘monopoly broth’ or ‘course of conduct’ that
violates Section 2”).
426
Cont’l Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690, 699 (1962);
see also City of Mishawaka, Ind. v. Am. Elec. Power Co., 616 F.2d 976, 986 (7th Cir.
1980) (“It is the mix of the various ingredients of utility behavior in a monopoly
broth that produces the unsavory avor.”); CarePoint Health Sys. Inc. v. RWJ
Barnabas Health, Inc., No. 22CV5421 EP CLW, 2023 WL 7986429, at *7 (D.N.J.
Nov. 17, 2023) (plainti “alleges numerous instances of [defendant’s] conduct that,
evaluated together, plausibly coalesce into an alleged scheme”).
427
City of Anaheim v. S. California Edison Co., 955 F.2d 1373, 1376 (9th Cir.
1992).
428
United States v. Microsoft Corp., 253 F.3d 34, 78 (D.C. Cir. 2001) (“the Dis-
trict Court did not point to any series of acts, each of which harms competition only
slightly but the cumulative eect of which is signicant enough to form an independ-
ent basis for liability”).
429
Id. at 58–59.
430
Id. at 59.
2024 / e Antitrust Case Against Live Nation Entertainment 67
that the anticompetitive harm ... outweighs the procompetitive benet.”
431
Oering a variation, the Ninth Circuit in Epic Games v. Apple considered not
only anticompetitive eects, procompetitive justications, and balancing,
but also whether there were “substantially less restrictive alternatives” that
achieved the defendant’s objectives.
432
And as one hornbook explains, “courts
... typically ask whether the conduct, even if supported by a justication,
hinders competition ‘in an unnecessarily restrictive way.’”
433
B. Application
In addition to the conduct discussed in the previous three Parts—
(1) exclusive dealing with venues, (2) tying of promotion to ticketing, and
(3) deception—a plainti could introduce four other forms of behavior. Each
of these four types of conduct is anticompetitive, and each exacerbates the
eects of other behavior.
e rst is illegal conduct to harm a rival that the company viewed as
a threat.
434
In one example, which culminated in Ticketmaster’s payment of
a $10 million criminal ne, the rival oered artists “the ability to sell presale
tickets” and created “a password-protected app that provided real-time data
about tickets sold through the ... company.”
435
Ticketmaster engaged in an array of illegal behavior to harm this rival,
including “repeatedly—and illegally—access[ing]” its computers “without
authorization using stolen passwords” and “brazenly [holding] a division-wide
431
Id.
432
Epic Games, Inc. v. Apple, Inc., 67 F.4th 946, 983–94 (9th Cir. 2023).
433
A L D, supra note 57, at 324; Aspen Skiing Co. v.
Aspen Highlands Skiing Corp., 472 U.S. 585, 605 (1985) (“it is relevant to con-
sider” the “impact” of the defendant’s conduct “on consumers and whether it has
impaired competition in an unnecessarily restrictive way”); Multistate Legal Stud.,
Inc. v. Harcourt Brace Jovanovich Legal & Pro. Publications, Inc., 63 F.3d 1540,
1550 (10th Cir. 1995) (“Predatory practices are illegal if they impair opportunities
of rivals and are not competition on the merits or are more restrictive than reasonably
necessary for such competition.”).
434
Press Release, U.S. Attorney’s Oce, E.D.N.Y., Ticketmaster Pays $10 Million
Criminal Fine for Intrusions into Competitor’s Computer Systems (Dec. 30, 2020),
https://www.justice.gov/usao-edny/pr/ticketmaster-pays-10-million-criminal-ne-
intrusions-competitor-s-computer-systems-0 [https://perma.cc/SQ7H-8CUM]. See
also Brooks, supra note 7 (Songkick alleged in lawsuit that Ticketmaster (and former
Songkick) employee “used old logins to access Songkick’s systems in order to misap-
propriate information”).
435
Id.
68 Harvard Journal of Sports & Entertainment Law / Vol. 15
‘summit’” where the passwords “were used to access the victim company’s
computers.”
436
One employee even kept a spreadsheet of every web page of the
company so that Ticketmaster could identify the rival’s clients and “attempt
to dissuade them from selling tickets” through the rival.
437
A Ticketmaster
executive conceded that the goal was to “choke o” the rival, and a senior
employee promised that Ticketmaster “could ‘cut [the victim company] o at
the knees’ if they could win back presale ticketing business” for an “artist that
was a client of the victim company.”
438
A second type of conduct
439
involves “radius clauses” that “restrict[] acts
from playing within a specied radius of a booked show for a specied period
of time,” which “prevent[s] competing venues from booking artists.”
440
ese
provisions threaten to reduce the number of artists performing live, which
increases the price of performances and “causes reductions in the quality and
quantity of both music festivals and concert venues.”
441
Radius clauses par-
ticularly threaten “[s]maller to mid-tier acts” that “need to be able to tour and
make money out on the road,” but “are literally having to travel 500 miles
every night, which is dangerous and expensive ... [i]f they can’t play markets
that are within reasonable drives.”
442
436
Id.
437
Id.
438
Id.
439
Artists to Take Pay Cuts with Live Nation’s 2021 Plans, SNS R,
https://www.slipnsliderecords.com/artists-to-take-pay-cuts-with-live-nations-
2021-plans/ [https://perma.cc/4WSB-95LB] (last visited Dec. 17, 2023) (Live
Nation memo provides consequences to artist violating radius clause).
440
Jennifer Oliver, DOJ: Event Powerhouse Live Nation Punished Concert Venues
for Using Competing Ticketers Despite Bar, M R (Mar. 19, 2020), https://
blog.moginrubin.com/doj-event-powerhouse-live-nation-punished-concert-venues-
for-using-competing-ticketers-despite-bar [https://perma.cc/8SW6-CXLY]. See also
Mickelson QFR Responses, supra note 118, at 9 (radius clauses “limit[] the ability of
artists to work with a dierent promoter in a geographic[] area”).
441
Trevor Lane, Dening Unreasonable Radius Clauses for American Music Festivals,
42 S U. L. R. 1247, 1249 (2019).
442
Katie Bain, How the Music Industry Uses a Pervasive Secret Weapon To Keep
Bands from Freely Touring, LA W (Apr. 18, 2017), https://www.laweekly.com/
how-the-music-industry-uses-a-pervasive-secret-weapon-to-keep-bands-from-freely-
touring/ [https://perma.cc/LZW9-H4YX]. See also Matt Pollock, How One Insanely
Popular Music Festival Is Keeping You From Seeing Your Favorite Bands, M (June 16,
2014), https://www.mic.com/articles/91181/how-one-insanely-popular-music-festi-
val-is-keeping-you-from-seeing-your-favorite-bands [https://perma.cc/AT9U-GAJ8]
(“for every superstar who’s dodged the clause, there’s a midlevel band... whose sum-
mer tour schedule, mysteriously or not, skips over Detroit, St. Louis, Indianapolis,
2024 / e Antitrust Case Against Live Nation Entertainment 69
Radius clauses also harm promoters, such as one who “lost hundreds
of bookings” because of the clauses.
443
is harm is exacerbated by “con-
solidation,” evidenced through Live Nation’s acquisition of “myriad festival
brands,” which “makes it possible for talent buyers to oer artists multiple
festival dates over the course of the touring season, eectively buying out
talent and, in some cases, making it nearly impossible for other promoters to
book them.”
444
Smaller festivals have lamented the challenges they faced when
trying to “book bigger artists and ... bands,” who “were all playing the bigger
festivals” and were blocked from playing smaller festivals.
445
A third behavior involves tying. In particular, the company has leveraged
its control over the promotion market to gain exclusive venue operation con-
tracts. In 2023, for example, Live Nation threatened a tie: if the city of Irvine,
California wanted Live Nation artists to perform at a planned amphitheater,
it was required to enter into an exclusive arrangement for the venue.
446
e
city negotiated with the company, and in what one commenter called a “clas-
sic case of bait and switch,” Live Nation requested revisions to the agreement
approved by City Council that “would shift signicantly increased costs ...
to the City” and ‘introduce additional revenue streams for Live Nation.”
447
and Milwaukee,” which is “a huge blow” in an industry “increasingly dependent on
live concerts as almost exclusive sources of revenue”).
443
Bain, supra note 442. See id. (“Radius clauses hurt all independent promoters”).
444
Id. See also Mickelson QFR Responses, supra note 118, at 10 (“radius clauses
built into festival oers... limit[] the ability [of] artists to work with a dierent
promoter in a geographical area”).
445
Bain, supra note 442.
446
Doug Elliott, Opinion: Funny Valentine? Say “No” to Live Nation Bait and
Switch, “Yes” to a Smaller Amphitheater, I W (Feb. 12, 2023), https://
irvinewatchdog.org/city-hall/city-council/opinion-funny-valentine-say-no-to-live-
nation-bait-and-switch-yes-to-a-smaller-amphitheater/ [https://perma.cc/JEJ8-
6SEB] (noting that Live Nation “demands an exclusive right to host all events with
more than 5,000 attendance anywhere in the park”).
447
Id.; see also Five Points Amphitheater is Gone, R, https://www.reddit.
com/r/orangecounty/comments/17dn4cy/five_points_amphitheater_is_gone/
[https://perma.cc/W7DG-WV2E] (last visited Dec. 18, 2023) (“Live Nation contin-
ued to change the terms of the deal to get more and more of the revenue out of the
new venue while the city had to cover more and more of the expenses. With every
revision the deal was worse for the city and better for Live Nation.”). For example,
the company’s changes would increase the city’s construction costs; design costs; and
furnishings, ttings, and equipment costs by $37 to $54 million; shift to the city li-
ability for a possessory interest tax; and make the city liable for liquidated damages
“if construction isn’t timely completed.” Id. See also id. (“e Council-approved deal
provided for a $5 per ticket surcharge, with revenues to be split 50/50 between the
70 Harvard Journal of Sports & Entertainment Law / Vol. 15
Live Nation indicated that the promotion of concerts was tied to its
status as exclusive operator of the Irvine amphitheater. A city councilwoman
said that Live Nation “suggested—behind closed doors—[that] they wouldn’t
come [and oer concerts] unless they controlled the venue.”
448
Live Nation
“absolutely discussed” this and said that “they simply won’t throw acts our
way.”
449
e threats are reminiscent of the company’s tying of promotion and
ticketing, revealing coercion in a setting in which the company has power in
the markets for both promotion and venues.
450
A nal type of conduct similarly extends the company’s reach. A leading
promoter has explained that Live Nation has “eectively eliminated the arena
part” of the business by “[p]urchasing tours for their outdoor amphitheaters,”
“[l]everaging ... outdoor amphitheater shows to procure indoor shows,”
“[l]everaging ... summer festivals to procure indoor concerts,” “[t]hreatening
nancial penalties ... if artists wanted to work for [a rival promoter],” and
“[p]aying a band 100% or more of the gross ticket sales.”
451
To similar eect,
one source noted industry experts’ views that “Live Nation’s squeeze on inde-
pendent venues is getting tighter as the company rolls out its strategy to own
or manage club-sized venues across the country.”
452
Such behavior adds to the
hurdles facing potential rival promoters.
is array of conduct, in combination with each other and with the
collection of behavior discussed throughout the Article, has a cumulative
eect. For example, ticketing rivals face an uphill climb as the vast majority
of venues are out of reach because of exclusive deals, with many of the oth-
ers subject to the tying of promotion and ticketing, and others subject to the
criminal conduct discussed above.
453
Promoters are injured by radius clauses
that operate as another form of exclusivity combined with the arena conduct
described in the previous paragraph, and Live Nation’s willingness to sustain
losses in promotion that it makes up in ticketing.
454
Venues not aliated with
parties to cover maintenance costs. e surcharge was to be increased by 10 percent
every three years; Live Nation now wants to drop those increases.”).
448
Noah Biesiada, Irvine Kills Negotiations With Live Nation, Wants Amphi-
theater to Generate City Revenue, V OC (July 25, 2023), https://voiceofoc.
org/2023/07/irvine-kills-negotiations-with-live-nation-wants-amphitheater-to-gen-
erate-city-revenue/ [https://perma.cc/XU2U-UTX2].
449
Id.
450
See supra Parts III.B. & III.C.
451
Mickelson QFR Responses, supra note 118, at 10.
452
T C F, supra note 148, at 4.
453
See supra notes 434–438 and accompanying text.
454
See supra notes 145–159 and accompanying text.
2024 / e Antitrust Case Against Live Nation Entertainment 71
Live Nation are harmed by conduct like what occurred in Irvine and also are
forced to take Ticketmaster’s ticketing services.
1.
Anticompetitiv
e Eects
As discussed throughout this Article, signicant anticompetitive eects
that harm the market as a whole have been suered by consumers, artists,
venues, and promoters. As shown above, consumers have suered high fees
and inferior quality, while (1) artists (particularly smaller and mid-tier ones)
suer from Live Nation’s power, (2) venues not in exclusive contracts are
required to take Ticketmaster’s ticketing services, and (3) promoters work
with fewer artists and are forced to use Ticketmaster.
455
All of this evidence of market power has been entrenched and exacerbated
by the conduct described in this Article. Exclusive dealing prevents rival ticket-
ing companies from eectively competing with Ticketmaster by foreclosing the
vast majority of U.S. venues and not enabling them to achieve the economies
of scale needed to compete.
456
Tying promotion and ticketing forces venues
that wish to book Live Nation artists to use Ticketmaster for ticketing.
457
Rival
ticketing companies, again, are injured for reasons similar to those imposed by
exclusive dealing. Deception leads to consumers suering from misrepresenta-
tions like “bait and switch” tactics and a lack of notice on transferability that
entrench Ticketmaster’s monopoly power. And additional behavior considered
as part of an overall course of conduct magnies these eects: criminal mis-
appropriation harms ticketing rivals; radius clauses injure promoters; and the
tying of promotion to venues and leveraging of various markets to arenas harms
other promoters and non-Ticketmaster-aliated venues.
Harms are further revealed by considering potential advantages oered
by other ticketing companies that would gain market share in a competitive
marketplace. SeatGeek, for example, is preferred by customers, who give it a
“Net Promoter Score” (a “customer loyalty metric that measures customers’
willingness to return for another purchase as well as to make a recommenda-
tion to their family, friends, or colleagues”
458
) of 85, higher than Ticketmaster’s
455
See supra Part IV.A.
456
See supra Part VI.B.
457
See supra Part VII.B.
458
Net Promoter Score explained, C G, https://customer.guru/net-
promoter-score [https://perma.cc/Y93F-LZP3] (last visited Nov. 11, 2023).
72 Harvard Journal of Sports & Entertainment Law / Vol. 15
66.
459
One reason fans may prefer SeatGeek is that it has engaged in signi-
cant attempts “to eliminate bot trac” by using “sophisticated algo
rithms and
machine learning techniques to detect and block bots in r
eal time,” manually
reviewing ticket purchases to “check[] for unusual behavior,” and limiting
ticket purchases.
460
Nor is the company alone in oering potential benets
over Ticketmaster’s services.
StubHub oers a “FanProtect Guarantee” that guarantees that buyers
“will get ... tickets in time for the event,” that the tickets “will be valid for
entry,” that they “will be the same as or comparable to those ... ordered,” and
that “[i]f any of these things do not occur ... we will nd you comparable
or better tickets to the event, or oer you a refund of what you paid for your
purchase or credit of the same amount for use on a future purchase.”
461
On
the other side, the policy protects sellers by ensuring that they “will receive
payment for all tickets you sell and deliver in accordance with our User Agree-
ment and all policies,” that “[i]n most cases, buyers or prospective buyers are
not permitted to contact you,” and that “[y]ou can adjust your ticket prices
any time before they sell.”
462
Similarly, SeatGeek oers a Buyer Guarantee that “works to ensure that
... [y]our tickets will be delivered in time for the event; ... [y]our tickets will
provide valid entry to the event; ... [t]he tickets you receive will be the same
as those you ordered; and ... [i]f any of these things do not occur, we will
work with you on a case-by-case basis to resolve any veried issue(s) covered
by this Buyer Guarantee, by providing you with comparable or better tickets
to the event, a refund, or, subject to applicable law, a credit.”
463
SeatGeek also
459
SeatGeek.com Net Promoter Score 2023 Benchmarks, C G,
https://netpromoterscore.guru/seatgeek-com [https://perma.cc/6BXT-7TYW] (last
visited Nov. 11, 2023); Ticketmaster.IE Net Promoter Score 2023 Benchmarks,
C G, https://netpromoterscore.guru/ticketmaster-ie [https://perma.
cc/3X3J-US74] (last visited Nov. 11, 2023). See also Groetzinger testimony, supra
note 102, at 2–3 (noting that SeatGeek has the “highest [score] of any major ticket-
ing provider”).
460
at’s the Ticket: Promoting Competition and Protecting Consumers in Live
Entertainment, Hearing Before the S. Comm. Jud., 118 Cong. 205 (2023) (responses
of Jack Groetzinger, CEO, SeatGeek, to Questions for the Record), https://www.
congress.gov/event/118th-congress/senate-event/333501/text?s=1&r=92 [https://
perma.cc/8GB5-9BN3].
461
FanProtect Guarantee, SH, https://www.stubhub.com/legal/?section=fp
[https://perma.cc/W8EE-CDEE] (last visited Nov. 30, 2023).
462
Id.
463
Buyer Guarantee, SG, https://seatgeek.com/buyer-guarantee [https://
perma.cc/QMB5-XB7E] (last updated Mar. 9, 2023). See also N.Y. R,
2024 / e Antitrust Case Against Live Nation Entertainment 73
protects sellers by making clear that it will “remit to [the] Seller” the appro-
priate payment after receiving it from the buyer.
464
More generally, the head of one ticketing industry association testied
that independent ticketing companies “have multiple platforms” that they
“market [their] tickets from,” in contrast to Ticketmaster, which “only sells
exclusively.”
465
As a result, a performer “would have a great benet to selling
their tickets through [other] exchanges,” which could “give[] it more visibility”
and oer “lower fees.”
466
Similarly, another company stated that “100 percent
of our sites allow consumers to see the total nal cost of the ticket before they
enter any personal identiable information.”
467
Even more generally, Ticketmaster’s power prevents innovation that
could benet the industry such as “greater transparency and analytics for
artists” and “advancements in handling the problematic secondary ticketing
market,” such as “facilitating a safer and fairer system that keeps prices lower
while allowing artists to benet in the resale of their tickets.”
468
One analyst
explained that “Live Nation would be a shell of itself without Ticketmaster
... because that’s where they get all the data on consumers that powers the
rest of their business.”
469
Ticketmaster’s combination of exclusive dealing and
supra note 160, at 127, 153 (ticketing service Vivid Seats testied that it “denitely
know[s] who [its] sellers are,” that “if we don’t know you, you can’t sell tickets on
our website,” and that it has “a large antifraud team” and “carefully vet[s] our sellers
before we put them on the site,... mak[ing] sure people are certain that they have
what they need to get in”).
464
Seller Terms, SG, https://seatgeek.com/terms/seller [https://perma.cc/
HW94-YYEV] (last updated Mar. 9, 2023).
465
Joint Public Hearing, supra note 85, at 139.
466
Id.
467
Id. at 154. See also Letter from Amy Klobuchar, Sen. Minn., to Michael Rapino,
CEO, Live Nation Entertainment, Inc. (Oct. 25, 2023), https://www.klobuchar.
senate.gov/public/_cache/les/b/8/b874cd8f-b53b-4ed1-9440-92e35ea4588d/231
BC5D578F16FCC56E141B11444646F.10.25.23-senator-klobuchar-letter-to-live-
nation.pdf [https://perma.cc/HML9-ZAY7] (noting that “Live Nation-Ticketmas-
ter... has not yet made the all-in ticket price—including fees—the default setting
for its platform” and that “[f]or many events, including those for its own venues, it
is still too dicult to see the all-in price before checkout”).
468
Lawrence testimony, supra note 168, at 3.
469
Canal, supra note 149. e data can be expansive, including “[y]our personal
phone number, your IP address, everything they can possibly do to track you, put
things on your website, or on your browser, to track you.” N.Y. hearing, supra note
85, at 133–34. See also Lawrence testimony, supra note 168, at 3 (musician lamented
that “[w]hen fans buy tickets, all of their personal info goes exclusively to Ticketmas-
ter, while none of it is shared with the artist”).
74 Harvard Journal of Sports & Entertainment Law / Vol. 15
tying of promotions deprives ticketing rivals of access to data that they would
need to compete with the company.
A nal vantage point on the harms is provided by the United Kingdom’s
English Premier League, an example of a competitive market. e venues that
host these teams “do not rely on concerts for revenue” and thus “do not rely
on Live Nation.”
470
As a result, venues “choose a ticketing platform based on
the merits of the technology,” which would appear to have played a role in
Ticketmaster providing ticketing for “only twenty percent” of the teams.
471
2. Procompetitive Justications
Once a plainti demonstrates anticompetitive eects, the burden shifts
to the defendant to oer a procompetitive justication. e company could
raise two primary justications: (1) tying promotion and ticketing to enhance
quality and (2) addressing free riding through exclusive contracts.
472
Live Nation Entertainment’s tying of promotion and ticketing would
not implicate most of the justications typically advanced for such arrange-
ments such as: (1) protecting product quality (for example, where a com-
pany’s product “works well only with particular supplies”); (2) “reduc[ing]
costs or rais[ing] value”; (3) “increasing price competition through indirect
or selective price cuts”; and (4) bringing “a guaranteed volume of patronage
in the tied market that might aid its entry into that market.”
473
Considered expansively, the quality justication could be relevant. Live
Nation Entertainment could claim that it requires its promoted concerts to
use Ticketmaster ticketing because of the potential quality harms from using
rivals. As discussed above, the company has explained that it has “expended
signicant capital and other resources to protect against and remedy ... po-
tential security breaches, incidents and their consequences” and “spend[s] an
inordinate amount of time and money defending our site against bots; work-
ing with third parties, building our own software, using our new smart-key
platform, and having teams in real-time at every on-sale, trying to identify
bot trac and defend against it.”
474
470
Groetzinger testimony, supra note 102, at 10.
471
Id.
472
e company likely would take issue with conduct being labeled deceptive as
opposed to oering a justication for the behavior. It also would likely not admit to
illegally accessing rivals’ computers. See supra notes 434–438 and accompanying text.
473
IX H H, A L: A A A P-
T A ¶1703g, at 54–56 (4th ed. 2018).
474
See supra notes 206–207 and accompanying text; see generally supra Part V.
2024 / e Antitrust Case Against Live Nation Entertainment 75
For a justication for exclusive dealing, the company could claim that
exclusive contracts are needed to recoup investments in ticketing hardware
and software and that venues prefer the contracts.
475
ese justications are likely to be rebutted. For starters, rivals like
StubHub and SeatGeek have implemented policies that reect their reliabili-
ty.
476
StubHub, for example, oers guarantees that buyers will obtain valid
tickets and sellers will receive payment.
477
More generally, for tying and any other behavior that relies on a defense
based on security or quality, Ticketmaster’s two-faced treatment of secondary
ticketing reveals its lack of seriousness.
478
While it claims to be focused on the
issues of rooting out bots and improving quality, its actions tell another story.
In particular, undercover reporting revealed how the company has refused to
take action against blatant violations of its policies on ticket limits.
479
Jour-
nalists found out that “despite the existence of a Ticketmaster ‘buyer abuse’
division that looks for suspicious online activity in ticket sales,” the company
“turns a blind eye to its TradeDesk users who grab lots of tickets,” with a sales
representative conceding that some brokers have “literally a couple of hundred
accounts” on TradeDesk and it’s “not something that we look at or report.”
480
In addition, Ticketmaster provides incentives for large reselling activity.
TradeDesk “brings an immediate 3 percent discount on Ticketmaster’s usual 7
per cent selling fee on a resale ticket.”
481
Users who “hit $500,000 in sales” get
“a percentage point ... shaved o their fees,” and “[a]t $1 million, another per-
centage point falls o.”
482
An incentive scheme that promotes bots and higher
sales in the secondary market belies the claim that Ticketmaster can oer a
legitimate procompetitive justication based on addressing fraud and bots.
475
See supra note 309 and accompanying text (stating that venues “prefer long
term exclusive contracts” because of the compatibility of computers, not needing
to change retail outlets, “simplif[ying]... bookkeeping and reduc[ing] the cost of
renego tiating the contracts every few years,” xing costs “for a longer, more predict-
able future,” and “obtain[ing] cash up-front from the ticket servicer... at the cost
of a long term contract, so that the ticket servicer may amortize the cost with the
expected income over the years of the contract”).
476
See supra notes 458–467 and accompanying text.
477
See supra note 461 and accompanying text.
478
See supra Part V. Quality justications also would not support a requirement to
enter into exclusive venue contracts to obtain Live Nation’s promoted acts. See supra
notes 446–450 and accompanying text.
479
See supra Part V.
480
Wang, supra note 224. See supra note 225 and accompanying text.
481
Cribb & Oved, Undercover Ticket Scalpers, supra note 202.
482
Id.
76 Harvard Journal of Sports & Entertainment Law / Vol. 15
e response to exclusive contracts, again, is that the typical explana-
tions based on preventing free riding and encouraging dealer promotion do
not apply here. As discussed above,
483
the nature of the product distinguishes
this case from the typical free-riding scenario involving luxury, new, or com-
plex products oered directly to consumers.
484
In addition, Ticketmaster is
not spending money to promote its ticketing product, with rivals piggyback-
ing on those eorts. Nor is it likely that ticketing rivals could oer tickets at
lower cost because they do not pay to promote the event. Again, ticketing
fees have little connection with the services provided.
485
In fact, the company
uses a loss-leader strategy that, as discussed above, involves undercharging
in the promotion market, which is not consistent with needing to exploit
investments in that market.
486
Finally, it is not likely that a venue would steer
customers to a ticketer other than Ticketmaster to get a bigger revenue share.
Venues initially ocked to—and have stayed with—Ticketmaster because it
increased the fees, shared them with the venues, and took “the bruises from
people who don’t like the process.”
487
For similar reasons, justications based on dealer promotion are likely
to be rebutted. And as discussed above, the fact that venues benet from ex-
clusive arrangements is not dispositive.
488
In short, a plainti is likely to rebut any procompetitive justications
that the company oers.
3. Less Restrictive Alternatives
A court likely would not accept Live Nation Entertainment’s justica-
tions for tying and exclusive dealing. But even if it did, alternatives could
achieve the company’s objectives in a manner less restrictive of competition.
If the company claims that it needs to engage in tying of promotion
to ticketing to ensure safety, there is an obvious less restrictive alternative:
enforcing its rules. e smoking-gun evidence showed that it did not enforce
483
See supra notes 290–297 and accompanying text.
484
See supra notes 293–294 and accompanying text.
485
See supra note 295 and accompanying text.
486
See supra note 296 and accompanying text.
487
See supra note 297 and accompanying text. For a discussion of issues relating to
hardware and software, see supra notes 298–306 and accompanying text.
488
See supra note 313 and accompanying text. See also Melamed, supra note 262,
at 405 (explaining that manufacturer with market power can “share supracompetitive
prots with the distributor” and then “retain the exclusive arrangement regardless of the
duration of its contract” or “without entering into any cognizable agreement at all”).
2024 / e Antitrust Case Against Live Nation Entertainment 77
rules on: the number of tickets allowed, not using multiple accounts to avoid
ticket limits, not using automated computer programs, requesting no more
than a certain number of pages within a two-hour period, and not refresh-
ing a browser too quickly.
489
Simply enforcing these rules oers an alterna-
tive that is less restrictive than tying activity that harms ticketing rivals and
entrenches the company’s monopoly power. At the same time, the rules target
automated bots that “crowd out human purchasers,”
490
thereby promoting
objectives related to safety and quality.
491
For exclusive dealing, given the nature of the product, justications
related to free riding are not central.
492
But even if the company sought to
protect investments in its ticketing hardware or software, it could do so
by protecting it with intellectual property—in particular, patents or copy-
rights—that would prevent rivals from using them.
493
Even the exclusive
dealing contracts could be shortened signicantly below the current ve-to-
ten-year periods to recoup any investments.
494
489
See supra notes 209–233 and accompanying text.
490
See supra notes 198–199 and accompanying text.
491
Another potential less restrictive alternative is to allow other ticketing compa-
nies to provide their services for Live Nation concerts (as long as this is warranted by
their reliability). As shown above, ticketing rivals like StubHub and SeatGeek have
implemented measures to promote safety and quality. See supra notes 460–464 and
accompanying text. Allowing such rivals to compete would foster competition in the
ticketing market while providing venues with more choices.
492
See supra notes 295–297 and accompanying text.
493
Peter S. Menell, Economic Analysis of Network Eects and Intellectual Property,
34 B T. L.J. 219, 261 (2019); Copyright Registration of Computer
Programs (Circular 61), U.S. C O, https://www.copyright.gov/circs/
circ61.pdf [https://perma.cc/X3D3-TJ5L]; Hardware Technology Intellectual Prop-
erty Law, Stanton IP Law Firm, P.A., https://stantoniplaw.com/industries/hardware-
technology/ [https://perma.cc/8P8N-BPQR] (last visited Dec. 19, 2023).
494
See supra note 306 and accompanying text (citing J.P. Morgan report that com-
pany’s renewal rate over 100% “is explained by realizing that venue owners’ desire
to sign with Ticketmaster is less about hardware or software, and more about lling
seats with Live Nation produced concerts”) (emphasis omitted); see also Iris Dim-
mick, San Antonio City Council Awards Contract to Ticketmaster over Tobin Center,
S A R (Sept. 19, 2019), https://sanantonioreport.org/san-antonio-
city-council-awards-contract-to-ticketmaster-over-tobin-center/ [https://perma.
cc/52YV-HLSZ] (in bidding over venues in San Antonio, Ticketmaster pledged to
annually contribute $50,000 to a fund to support local arts and entertainment, in
addition to a $250,000 signing bonus and one-time payments totaling $40,000 in a
deal that was expected to bring in $2 million annually for the city).
78 Harvard Journal of Sports & Entertainment Law / Vol. 15
4. Balancing
A court likely would not credit the company’s justications or nd that
there were no less restrictive alternatives. But if it did, the analysis would
proceed to a balancing of anticompetitive and procompetitive eects. At this
stage, Live Nation Entertainment most likely would lose.
As discussed throughout the Article, the signicant anticompetitive
eects range throughout the entire ecosystem, preventing ticketing compa-
nies from constraining the company’s monopoly power, burdening fans with
high fees and inferior quality, and harming artists, venues, and promoters by
limiting choices and blocking markets. Again, the justication side of the
ledger would not be robust. Any balancing of the two eects likely would lead
to the anticompetitive eects emerging paramount.
495
X. R
e typical remedy for an antitrust violation is to stop the oending
conduct or pay damages.
496
In this case, an injunction would mean ending
the exclusive deals, not tying promotion to ticketing, not engaging in decep-
tive conduct, and not employing the other behavior that makes up an overall
course of conduct.
is is not the typical case, however. We have evidence on a silver platter
that the company cannot be trusted to follow a consent decree. For that is
exactly what Live Nation and Ticketmaster did after entering into the 2010
agreement. As the DOJ stated: the merging companies “failed to live up to
their end of the bargain” by “repeatedly condition[ing] and threaten[ing] to
495
Applying the analysis of unnecessarily harming rivals would support the results
from balancing as rivals suer signicant harm that is not necessary to attain Live
Nation Entertainment’s objectives. See supra notes 317–319 & 391–392, and accom-
panying text. A similar analysis would apply to the conduct hindering competition
“in an unnecessarily restrictive way.” See supra note 433 and accompanying text.
496
See, e.g., Herbert J. Hovenkamp, Is Antitrust’s Consumer Welfare Principle
Imperiled?, 45 J. C. L. 65, 88 (2019) (explaining that when anticompetitive pro-
visions “are identied and proven to be anticompetitive, the appropriate remedy for
them would most likely be an injunction or treble damages in the case of private
plaintis”). For a more comprehensive analysis of remedies, see A. Douglas Melamed,
Afterword: e Purposes of Antitrust Remedies, 76 A L.J. 359, 359–68 (2009)
(noting four purposes: (1) “[c]ompensation of victims of unlawful conduct”; (2) [p]
unishment and deterrence of unlawful conduct”; (3) [t]erminating and preventing
the recurrence of unlawful conduct”; and (4) “[r]estoring competitive conditions to
the market harmed by the unlawful conduct”).
2024 / e Antitrust Case Against Live Nation Entertainment 79
condition Live Nation’s provision of live concerts on a venue’s purchase of
Ticketmaster ticketing services” and “retaliat[ing] against venues that opted
to use competing ticketing services—all in violation of the plain language of
the decree.”
497
In fact, the companies’ “well-earned reputation for threatening
behavior and retaliation ... has so permeated the industry that venues are
afraid to leave Ticketmaster lest they risk losing Live Nation concerts, hinder-
ing eective competition for primary ticketing services.”
498
e combination of promotion and ticketing is at the core of Live
Nation Entertainment’s anticompetitive behavior. e power the company
amasses from having control of popular artists provides it with an asset that
venues nd indispensable. And any promises it makes not to retaliate against
or threaten venues that do not use its ticketing services are not worth the
paper they are written on. Even if the company could be trusted on the other
conduct—exclusive dealing and not engaging in deception—its inability to
follow the dictates of the agreement do not give comfort to those advocating
for a more limited behavioral remedy. In fact, because it is dicult for a court
to anticipate all of the ways in which the company could evade a behavioral
remedy, a structural remedy oers advantages.
A structural remedy also is more promising in addressing the core harms
threatened by the company. Divesting Ticketmaster would foster competi-
tion in the ticketing market and allow rivals to achieve the scale needed to
challenge the company.
499
It would break the company’s loss-leader model
that prevents other promoters from eectively competing with Live Nation.
500
And it would not threaten the loss of any meaningful eciencies.
501
Divestiture also would promise to create competition in multiple mar-
kets. e vertically integrated Live Nation Entertainment has little interest in
497
See supra notes 359–360 and accompanying text.
498
See supra note 361 and accompanying text. is evidence oers an example of
the hazards of behavioral remedies. As John Kwoka & Diana Moss have explained:
“e common feature of behavioral remedies is that they are in eect attempts
to require a merged rm to operate in a manner inconsistent with its own prot-
maximizing incentives,” and “allowing the merger and then requiring the merged
rm to ignore the incentives inherent in its integrated structure is both paradoxical
and likely dicult to achieve.” John E. Kwoka & Diana L. Moss, Behavioral Merger
Remedies: Evaluation and Implications for Antitrust Enforcement, at 4–5, Nov. 2011,
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1959588 [https://perma.cc/
EQK4-ULCT].
499
is would be even more eective if action were taken to address the exclusive
contracts with venues.
500
See supra notes 145–159 and accompanying text.
501
See supra Part IX.B.2.
80 Harvard Journal of Sports & Entertainment Law / Vol. 15
allowing rivals at any level to compete, as this would threaten to reduce its
prots. As Jonathan Baker has explained, “[a] dominant rm that sells com-
plementary products can take customers away from an unintegrated rival,
thereby reducing the rival’s scale of operations and so raising its costs.”
502
Timothy Bresnahan and Shane Greenstein oer an example of the
benets of a decentralized structure in the computer industry, noting that
“[s]hifts in [a] dominant platform” are rare and tend to arise in “situations
of divided technical leadership” where “sellers of ... various components”
engage in “vertical competition for control of a platform.”
503
Analyzing per-
sonal computer platforms in the 1980s, the authors explain that IBM, the
“leading seller of microcomputer hardware,” focused on “incremental tech-
nical progress.”
504
But the company’s loss of its dominant position, together
with the rise of Microsoft’s operating system, resulted in a division of tech-
nical leadership that resulted in rapid shifts in the platform.
505
A structural
remedy promises similar benets in the case of Live Nation Entertainment,
harnessing competition in multiple markets to foster quality improvements
and enhanced innovation.
Breaking up a company for a monopolization violation is rare.
506
Stand-
ard Oil in 1911, for example, controlled more than 90 percent of U.S. oil-
related assets and its status as a holding company “made it easy for enforcers
to break ... up into subsidiaries.”
507
And AT&T in 1982 “voluntarily entered
into the settlement that divided it up and helped the government to deter-
mine how the breakup should occur.”
508
e typical challenge with breaking up a merged company is
“unscrambl[ing] the eggs,” in other words, separating the previously distinct
companies after they have merged. Breakups in the monopolization setting
are even harder, as it is unclear in the typical case where the lines of division
502
Jonathan B. Baker, Exclusion As A Core Competition Concern, 78 A
L.J. 527, 540 (2013).
503
Timothy F. Bresnahan & Shane Greenstein, Technological Competition and the
Structure of the Computer Industry, 47 J. I. E. 1, 23 (1999).
504
Id. at 26.
505
Id. at 27–28.
506
See Matthew Lane, e Great Antitrust Breakup: Often reatened, Rarely Exe-
cuted, DC (Mar. 13, 2018), https://www.project-disco.org/competition/031318-
the-great-antitrust-breakup-often-threatened-rarely-executed/ [https://perma.cc/
TDE4-YQ4W] (noting that it has only happened three times in non-merger cases).
507
Id.
508
Id. As Matthew Lane explains, the third case, United States v. United Shoe
Machinery, 391 U.S. 244 (1968), “was an unusual case where the company was
forced to sell o assets after a court-ordered conduct remedy failed.” Id.
2024 / e Antitrust Case Against Live Nation Entertainment 81
in a monopolization case lie.
509
In a case not involving a merger, “there are
rarely clear lines between business units that allow an enforcer to break o a
fully functioning company from the larger whole.”
510
In this case, however, none of this presents a stumbling block. As is
evident from its most recent quarterly results, the company divides itself into
various business lines: Live Nation Concerts, Venue Nation, Ticketmaster,
and Live Nation Sponsorship.
511
Ticketmaster, in addition, is organizationally
separate: a subsidiary of Live Nation Entertainment.
512
Observers have noted
that Live Nation “appears to have kept Ticketmaster’s operations mostly
separate, with diering focuses on ticketing and venue management.”
513
As
one commentator explained: “ey weren’t direct competitors when DOJ
approved the merger, and they’re less closely tied to each other now then if
they’d merged supply chains and workforces.”
514
e business lines therefore
can readily be separated.
If it were to bring a lawsuit, the DOJ would be justied in seeking a
remedy that would split apart Ticketmaster from Live Nation.
515
Such a rem-
edy would directly address the failing of the 2010 decree, which was not suc-
cessful in stopping the tying of the promotion and the ticketing markets.
516
Because (1) the merger enabled anticompetitive conduct, (2) the parties have
proven that they cannot be counted on to comply with behavioral restric-
tions, and (3) the company’s post-remedy breaches have done signicant
509
Id.
510
Id.
511
Live Nation Entertainment Reports ird Quarter 2023 Results, L N E-
(Nov. 2, 2023), https://www.livenationentertainment.com/2023/11/
live-nation-entertainment-reports-third-quarter-2023-results/ [https://perma.cc/
C5JY-4QCA].
512
Live Nation 10-K, supra note 19, at Exhibit 21.1, at 7.
513
Bad Blood: Swifties Start Wave of Ticketmaster Monopoly Scrutiny, AELP
(Nov. 18, 2022), https://www.economicliberties.us/media/bloomberg-law-bad-
blood-swifties-start-wave-of-ticketmaster-monopoly-scrutiny/# [https://perma.cc/
SWY4-FAYJ].
514
Id.
515
Cf. Mickelson QFR Responses, supra note 118, at 18 (promoter who testied
before Congress states that Live Nation “should be forced to sell all of its venues
(indoor and outdoor), divest themselves from Ticketmaster, stop managing artists,
and cease block booking tours”). In addition, the remedy should prevent Live Nation
from creating a new ticketing company.
516
In the context of remedial theory, divestiture can be justied as necessary to
prevent a recurrence of the anticompetitive conduct. In addition, it would restore
competition in the market. See Melamed, supra note 496, at 362–64.
82 Harvard Journal of Sports & Entertainment Law / Vol. 15
harm, undoing the merger is necessary to remove the company’s ability to
continue harming the market.
In addition to breaking up the company, a government plainti would
be justied in pursuing additional remedies.
517
e most critical one would
target the company’s exclusive agreements with venues that deprive ticketing
rivals of the ability to compete with Ticketmaster. An appropriate remedy
would require the company to sell or divest ownership interest in venues, end
the exclusive dealing arrangements, or both. Another would include injunc-
tive relief against deceptive conduct. And the last would address behavior that
is part of the overall course of conduct.
XI. C
Antitrust often is called upon to address complex issues. Has competi-
tion really been harmed? How should legitimate justications be considered?
Are there alternatives that would attain the defendant’s objectives without
imposing similar harm to competition?
is nuance is not present here. In fact, this is a straightforward anti-
trust case. e harms cannot be missed. Crashing websites. Ever-increasing
unjustied fees. A range of deceptive conduct. Even the rare “smoking gun”
evidence of Ticketmaster ocials, on camera, conceding that they do not
enforce the policies they so proudly trumpet.
All of this is buttressed by power throughout the industry. Live Nation
is the largest promoter. Ticketmaster is the largest ticketer. Most of the large-
scale venues are locked up for years.
Antitrust violations are typically met with a modest remedy. Antitrust
tends not to skip over such remedies to impose extreme measures. But this
is not the typical case. is is a case in which Live Nation and Ticketmaster
agreed to not threaten tying promotion and ticketing in the 2010 consent
decree. And they violated those obligations with ying colors. In fact, they
did so in such an egregious manner that the decree was extended, which
almost never happens.
Bringing another antitrust case but imposing similar behavioral rem-
edies thus does not make sense. e company has proven that it will not
follow the rules. As a result, breakup is the appropriate remedy. And because
517
For a discussion of private plaintis’ additional burden based on standing, see
supra note 53 and accompanying text.
2024 / e Antitrust Case Against Live Nation Entertainment 83
the company keeps its business lines separate, it would not be as hard as it
usually is.
In the classic Peanuts cartoon, Lucy holds a football while Charlie
Brown comes running up to kick it.
518
But every time he arrives at the ball,
Lucy removes it, causing him to y in the air.
519
Consumers, artists, venues,
and promoters should not be forced to play the role of Charlie Brown while
Live Nation Entertainment continues to yank away its promises.
Taylor Swift fans rightly were upset when Ticketmaster bungled the roll-
out of tickets for her 2022 tour. We should all be upset. is Article highlights
the strong antitrust case against the company and remedy that can x this.
518
Football gag, P W, https://peanuts.fandom.com/wiki/Football_gag
[https://perma.cc/68TH-G8CZ] (last visited Oct. 28, 2023).
519
Id.
