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US government sets out six times it believes Live Nation breached its consent decree

By | Published on Monday 13 January 2020

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The US Department Of Justice has outlined six ways in which it believes Live Nation breached the consent decree that it entered into with the government department following its 2010 merger with Ticketmaster. The live giant says it “strongly disagrees” with the competition regulator’s conclusions regarding those “isolated episodes”, but adds that it is now focused on putting its recent settlement with the DoJ into action.

The 2010 consent decree dealt with competition law concerns raised by the then new merger of the Live Nation venues and concerts business with Ticketmaster. It put in place various measures that sought to stop the combined Live Nation/Ticketmaster from leveraging its concert promotions business to secure competitive advantage for its ticketing business, or vice versa. The agreement was originally due to expire in 2020.

In more recent years there were various claims that Live Nation had breached the terms of that consent decree at various points, allegations the live giant repeatedly denied. However, despite those denials, by the end of 2019 it emerged that the DoJ had investigated the live firm’s conduct and was planning legal action in relation to the consent decree.

Then, just before the Christmas break, it was announced that Live Nation and the DoJ had reached a settlement deal that would stop the former from having to face off the regulator in court. Under that settlement deal the consent decree will be extended for another five and half years, with some elements of the agreement amended or clarified.

All of this was confirmed in a filing by the DoJ with the US courts last week. As well as outlining how the Live Nation consent decree is being amended, that legal filing also summarised the DoJ’s investigation into the live company’s conduct, and presented its arguments as to how Live Nation and Ticketmaster execs had allegedly breached the agreement over the last ten years.

It provides six specific examples of when Live Nation allegedly pulled or threatened to pull concerts from American venues that chose or were considering choosing a ticketing provider other than Ticketmaster. Those threats started occurring soon after the 2010 consent decree was agreed, the DoJ says, and continued until as recently as March 2019.

While the justice department only provides six specific examples from over ten years of Live Nation/Ticketmaster deal-making, it says that: “As a result of this conduct, venues throughout the United States have come to expect that refusing to contract with Ticketmaster will result in the venue receiving fewer Live Nation concerts or none at all”.

“Given the paramount importance of live event revenues to a venue’s bottom line”, the legal filing goes on, “this is a loss that most venues can ill-afford to risk. As a result, many venues are effectively required to contract with Ticketmaster to obtain Live Nation concerts on reasonable terms, limiting the ability of Ticketmaster’s competitors to compete in the primary ticketing market and harming venues that would benefit from increased competition”.

The DoJ confirms that Live Nation denies all of the allegations of misconduct made against it. That difference of opinion partly comes down to how some elements of the 2010 consent decree are interpreted, with the two sides disagreeing on what certain specific wording within the agreement actually means. Had the dispute gone to court, judges would have had to decide whose interpretation was right. Some reckon it could have gone either way.

It’s because of that disagreement over how the consent decree should be interpreted that the Live Nation/DoJ settlement deal will result in the now extended agreement being revised. That includes, the DoJ’s filing says, changes that will “strengthen the compliance provisions, including [the] appointment of an independent monitor and imposition of certain monitoring, notice and reporting obligations”. There are also new provisions “intended to make future investigation and enforcement of the [consent decree] more effective”.

Responding to the legal filing, Live Nation remained adamant that it had not, in fact, breached the terms of the 2010 consent decree, before stressing that – having already reached a deal with the DoJ on the past – it is now focused on the future.

The company said in a statement: “We strongly disagree with the DoJ’s allegations in the filing and the conclusions they seek to draw from six isolated episodes among some 5000 ticketing deals negotiated during the life of the consent decree. Nevertheless, in keeping with our decision to settle, our focus is now on bringing this matter to its conclusion and continuing to deliver the best live event experiences to fans everywhere”.