Given the glacial pace at which federal antitrust litigation moves, the U.S. Department of Justice’s historic lawsuit against Live Nation and its wholly owned subsidiary Ticketmaster is expected to take years to wind its way through the legal system whether it’s fully adjudicated or the live-event Goliath agrees to make changes to its business, which the government often terms “behavioral remedies.”
And though it’s clearly too early to predict how the case will play out, legal expert and antitrust attorney Lawrence J. White from New York University’s Stern School of Business says the potential winners and losers have already been largely pre-determined based on hints found in the 128-page complaint that the DOJ filed May 23 in U.S. District Court in the Southern District of New York.
“The companies mentioned in the complaint as being the most harmed by anti-competitive behavior are typically the same companies that stand the most to gain in the solution,” White says.
In the case of Live Nation, the winners will very likely be the company’s main concert promotion rival, AEG Presents; secondary-market ticketing competitor SeatGeek; and a handful of major independent promoters like Chicago’s Jam Productions. The losers would likely be Live Nation; Irving Azoff and Tim Leiweke’s venue owner, management and hospitality company, Oak View Group — which the DOJ alleges “has described itself as a ‘hammer’ and ‘protect[or]’ for Live Nation” — as well as, potentially, major artist management companies and talent agencies, depending on the government’s solution for more competitive ticket pricing.
“The government tends to rely on private companies to carry out its policy goals during the remedy phase of an antitrust case,” explains White, pointing toward the original consent decree drafted around the 2010 merger of Live Nation and Ticketmaster. That agreement unsuccessfully propped up two private companies — AEG and Comcast Spectacor — to serve as competitors to Ticketmaster.
Whether the DOJ wins in court or ends up settling with Live Nation, White says it will lean on large corporations to assist with enforcement of the ruling. As Live Nation’s only major competitor for ticketing and concert promotion, AEG, which owns AXS Ticketing, is an obvious choice as a DOJ partner because of the company’s large scale, which will be critical for the DOJ’s long-shot goal to lower ticket prices. (The DOJ is believed to have interviewed more than 100 individuals from the live-music industry as part of its recent antitrust investigation into Live Nation.)
In a May 23 press release that announced the lawsuit filing, Attorney General Merrick Garland said, “We allege that Live Nation relies on unlawful, anti-competitive conduct to exercise its monopolistic control over the live-events industry in the United States at the cost of fans, artists, smaller promoters and venue operators.” He contends that increasing competition among Live Nation’s ticketing rivals and in the artist promotion space will lower the face value prices of tickets.
Prior to the 2010 merger of Live Nation and Ticketmaster, four or five ticketing companies were capable of competing with the latter at the arena level. In 2024, only two remain: AXS and SeatGeek, the secondary site that also happens to own one of the only primary ticketing products capable of servicing major arenas and stadiums.
In a statement released to Billboard, SeatGeek said, “We are hopeful that the Department of Justice’s antitrust lawsuit to break up the Live Nation-Ticketmaster monopoly will restore fair market competition to live entertainment.” On the concert promotion front, there are far fewer major independent promoters now than there were prior to 2010 and only a handful capable of touring major arena acts across the country. In addition to Jam Productions, they include Nashville’s Outback Concerts and Another Planet Entertainment in the San Francisco Bay Area. All three promoters declined to comment for this story.
In a May 31 letter to his staff, AEG chairman/CEO Jay Marciano outlined how the DOJ could make concert promotion fairer and drive down the cost of ticketing by dismantling Live Nation’s “flywheel” business model, which is cited in the DOJ’s complaint and described in its May 23 press release as “a self-reinforcing business model that captures fees and revenue from concert fans and sponsorship, uses that revenue to lock up artists to exclusive promotion deals and then uses its powerful cache of live content to sign venues into long-term exclusive ticketing deals, thereby starting the cycle all over again.”
Marciano’s letter said Live Nation’s flywheel model “deploys the excessive profits of its ticketing monopoly to outspend what the concert market can profitably sustain.”
Under this theory, ticket prices would drop if Live Nation was prevented from using its other revenue sources to overpay artists and compete with other promoters offering artists an 85/15 or a 90/10 split on ticket sales.
Although the theory is not widely accepted by most major talent agents or managers — IAG executive vp/head of global music Jarred Arfa calls it “unrealistic” and “illogical” — it is gaining popularity among large indie promoters and DOJ lawyers, sources tell Billboard. White notes that whether the government settles or takes Ticketmaster to trial will depend on “the time and resources the DOJ wants to expend on the case and the evidence against Live Nation it has collected.”
This story appeared in the June 22, 2024, issue of Billboard.
