1AMERICAN ECONOMIC LIBERTIES PROJECT
economicliberties.us
The Case Against
Live Nation-Ticketmaster
Katherine Van Dyck and Lee Hepner
January 2024
The Live Nation-Ticketmaster merger, approved by the Antitrust Division of the
Department of Justice (“Justice Department”) through a consent degree in 2010, has been
a disaster for the live event industry. It has given Live Nation unprecedented control over
artists, venues, and consumers. Live Nation has used this position to block rivals in the
primary and secondary ticketing markets, funnel ticketing contracts with its own venues
and the tours it promotes to Ticketmaster, extract supra-competitive rents from venues
and artists, boycott venues that reject its terms, and price gouge consumers. The consent
decree that allowed this merger to go forward in the rst instance has clearly failed, and
it is time for the Justice Department to take renewed action, either through additional
amendments to the consent decree or a new Sherman Act case, to break up the live event
giant, bar Live Nation from participating in the primary and secondary ticketing markets
in the future, and enjoin the use of exclusivity contracts by Ticketmaster.
A BRIEF HISTORY OF THE LIVE NATION-
TICKETMASTER MERGER
A. HOW LIVE NATION IS STRUCTURED
Live Nation describes itself as “the largest live entertainment company in the world,
connecting over 670 million fans across all of our concerts and ticketing platforms in 48
POLICY BRIEF
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countries.”
1
It is divided into ve segments: “live music events [Concert Promotion], music
venue operations [Venues], the provision of management and other services to artists and
athletes [Artist Management], ticketing services [Ticketmaster], and sponsorship and
advertising sales.”
2
The rst four generate revenue as follows:
• Concert Promotion — the sale of tickets, “impacted by the number of events,
volume of ticket sales, and ticket prices,” totaled $13.5 billion in 2022;
3
• Venue Operation — “the sale of concessions, parking, premium seating, rental
income, and ticket rebates or service charges earned on tickets sold through our
internal ticketing operations or by third parties under ticketing agreements”;
4
• Artist Management — “commissions on the earnings of the artists and other
clients we represent, primarily derived from clients’ earnings for concert tours”;
5
• Ticketing (Ticketmaster) — “convenience and order processing fees, or service
charges, charged at the time a ticket for an event is sold in either the primary or
secondary markets,” totaling $2.2 billion in 2022.
6
Live Nation also oers sponsorship and advertising products, and separately reports that
revenue. In 2022, Live Nation’s sponsorship and advertising revenue totaled $968 million.
7
Because that revenue is derivative of Live Nation’s dominance in its core business segments,
we do not list it as a separate segment for purposes of this structural analysis. For their part,
artists—the talent behind all of these revenue streams—are paid a xed guarantee and/or
a percentage of ticket sales and event prots. They are sometimes reimbursed for costs of
production like sound and lights.
8
1 Live Nation Entertainment, 2022 Annual Report, at 2.
2 Id. at 4.
3 Id. at 5, 30, 87. The $13.5 billion figure includes revenue from Concert Promotion, Venue Operations, and Artist Management. Id. at
89. Figures for each of these three segments are not reported separately.
4 Id. at 5.
5 Id. at 87.
6 Id. at 5, 31, 87, 89.
7 Id. at 31, 88, 89.
8 Id. at 4.
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FIGURE 1.
9 Id. at 7.
10 Id. at 5, 7, 28.
Ticketing – Concert Promotion – Venues – Artist Management
Consumers/Fans
Sponsors/Advertisers
Artists
One can easily see where conicts of interest arise: In any given transaction, Live Nation
may have competing
nancial incentives to increase artists’ earnings, decrease venues’ and
promoters’ costs, and maximize its take of ticket sales at the Artist Management, Concert
Promotion, Venue Operation, and Ticketing levels of its live event business. In only one
of these segments, Artist Management, is it incentivized to maximize artists’ earnings,
and even then, Live Nation is more likely to manage artists whose fanbases can ll its own
major concert venues and generate revenue for its other business segments. Furthermore,
the incentive to generate greater revenue for artists competes internally with the incentive
for Live Nation to keep a higher percentage of ticket sales. Live Nation is financially
incentivized to schedule events at one of the 172 venues it owns, leases, or operates
(including festival sites) or at one of the 61 other venues for which it has exclusive booking
rights;
9
and to use Ticketmaster as the ticketing agent for every event it promotes (over
43,000 events in 2022).
10
Ticketmaster’s ticket-selling dominance, meanwhile, gives Live
Nation access to immense scale and the consumer data that comes with it, which in turn
attracts advertising revenue that it can use to subsidize supra-competitive guarantees that
attract high-prole artists to its Artist Management business.
Finally, Live Nation’s Concert Promotion and Artist Management businesses are notorious
for retaliating against third-party venues that refuse to use Ticketmaster, despite the
consent decrees that it has been bound by since 2010. Independently owned and operated
venues know that, if they do not use Ticketmaster, they are unlikely to be oered the
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chance to host lucrative Live Nation tours and events. Instead, those desirable events
will go to competitor venues that use Ticketmaster, or to Live Nation’s own venues. On
the other hand, if independent venues choose to contract with Ticketmaster, they are
eectively subsidizing the ability of Live Nation’s Venue Operator business to outbid them
for desirable non-Live Nation tours, via ticket fees that Ticketmaster, and by extension
Live Nation, collects on every ticket. These conicts allow Live Nation to pick winners and
losers, box out rivals, and refuse to innovate along metrics that benet fans.
All of this has broken the live event industry. We outline below the terms of the consent
decree that led to this state of aairs, how it failed, what remedies are required, and how
the Justice Department can pursue them under our antitrust laws. The short answer is
that Live Nation’s four main segments—Concert Promotion, Venue Operations, Artist
Management, and Ticketing—must be separate and independent entities.
11
Healthy
competition in the live event industry cannot be restored as long as they operate under
a single corporate umbrella. These divestments, and the behavioral remedies we also
propose, are exactly what the Sherman Act and Clayton Act were designed for, and the
Justice Department’s authority to enforce those laws should be used to those ends here.
B. THE 2009 MERGER AND THE GOVERNMENT’S
RESPONSE
In 2008, Ticketmaster was the dominant primary ticketing service in the country, with
a market share exceeding 80% among major concert venues.
12
Ticketmaster dominated
primary ticketing for over two decades and maintained its market share through the use
of long-term exclusivity agreements, which created signicant barriers to entry in the
primary ticketing market.
13
Even as Ticketmaster’s distribution costs began to decrease
with the advent of online purchasing, Ticketmaster’s fees remained the same.
14
For its part, Live Nation was (and still is) the country’s largest concert promoter. The
172 venues that Live Nation owns outright include 64% of the nation’s top-grossing
amphitheaters.
15
Live Nation was Ticketmaster’s largest primary ticketing client for
several years, until Live Nation decided to enter the ticketing business itself in late 2007.
16
Seemingly overnight, Live Nation became the second largest primary ticketing service in
11 The Sponsorship and Advertising segment’s revenue is not explicitly linked to ticket sales and is not a concern of this paper. In
any event, the new entities created by the proposed breakup can presumably handle advertising sales on their own.
12 United States v. Ticketmaster Entertainment Inc., No. 1:10-cv-00139-RMC, Complaint (Dkt. 1), ¶21 (D.D.C. Jan. 25, 2010).
13 Id. ¶¶5, 21.
14 Id. ¶23.
15 Krista Brown, The Depth of Live Nation’s Dominance: A Data Analysis of the Corporate Capture Behind Top Concert Venues
Worldwide, American Economic Liberties Project, at 3 (July 2023).
16 Ticketmaster, Complaint, ¶25.
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the country and was, given its control of venues and artists, an immediate and existential
threat to Ticketmaster. As Live Nation began poaching contracts with third-party venues
and with the largest venue operator in the United States (and Ticketmaster’s third-largest
customer), SMG,
17
Ticketmaster’s share of the primary ticketing market dropped from
82.9% to 66.4%.
18
The threat Live Nation posed was so great that, in February 2009, Live Nation and
Ticketmaster announced their intent to merge. One year later, the Justice Department,
along with 17 state attorneys general, led a lawsuit alleging that the proposed merger
would substantially lessen competition in primary ticketing in the United States and
violated Section 7 of the Clayton Act, 15 U.S.C. § 18.
19
The parties ultimately reached a
settlement allowing the merger to proceed, contingent on the merged rm (1) licensing
a copy of Ticketmaster’s host platform software to Anschutz Entertainment Group, Inc.
(AEG), and (2) divesting Ticketmaster subsidiary Paciolan, Inc. to Comcast-Spectacor.
20
The consent decree also included behavioral restrictions, like prohibitions on retaliating
against concert venues for using an alternative ticketing service, threatening concert
venues, or undertaking other specied actions against concert venues for a period of 10
years.
21
C. THE 2019 ENFORCEMENT ACTION
Fast forward nine years, and the consent decree was failing. Paciolan’s success as a
Ticketing service was limited to the market for college athletics ticketing; the ticketing
marketplace remained highly concentrated, with Live Nation controlling 60% and
AEG 30%, respectively, of the primary ticketing services market; and Live Nation was
systematically retaliating against venues that chose to do business with its Ticketing
competitors. For instance, in 2018, multiple venues managed by AEG in cities across the
country were threatened that they would lose concerts if they did not use Ticketmaster.
22
Live Nation was so powerful that the 2019 court lings outlining its abuses—blatant
violations of the 2010 judgment—anonymized its victims to prevent further retaliation.
23
17 Live Nation, Live Nation and SMG Announce Multi-Year Strategic Alliance Bringing 25 Million Tickets to Live Nation Ticketing
(Sept. 11, 2008). Formerly known as Spectacor Management Group, SMG was, at the time, one of the largest property management
companies in the world, and a merger with Live Nation was discussed around 2017. Don Muret, Live Nation Entertainment Bidding
to Acquire Facility Manager SMG, Sports Business Journal (Nov. 28, 2017). SMG ultimately merged with AEG Facilities in 2019, and
the merged firm is now known as ASM Global. Press Release, AEG Facilities and SMG Complete Transaction to Create ASM Global,
Business Wire (Oct. 1, 2019).
18 Ticketmaster, Complaint, ¶¶21, 24.
19 Id. ¶46.
20 Ticketmaster, Final J’ment (Dkt. 15) (D.D.C. July 30, 2010).
21 Id.
22 Ben Sisario and Graham Bowley, Live Nation Rules Music Ticketing, Some Say With Threats, N.Y. Times (Apr. 1, 2018).
23 Ticketmaster, Mtn. to Modify Final J’ment and Enter Am. Final J’ment (Dkt. 22), at 7–10 (D.D.C. Jan. 8, 2020).
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The Justice Department’s response, led at the time by Assistant Attorney General Makan
Delrahim, to Live Nation’s repeated violations of the consent decree was tepid. Live Nation
was assessed a paltry $3 million ne.
24
And despite the failure of the original consent
decree, they agreed to a revised consent decree that did not strengthen or otherwise
expand any of the behavioral remedies. It merely extended the existing remedies by ve
and a half years. DOJ failed to pursue any further structural remedies, and it created
opaque monitoring and compliance programs that do little to protect venues, artists, and
fans. The monitoring programs included appointing an Independent Monitoring Trustee,
requiring Live Nation to hire an Antitrust Compliance Ocer, and establishing various
reporting and certication requirements. Finally, the revised consent decree conferred
jurisdiction upon “Interested Plainti States” to pursue their own remedies for any
violations of the agreement.
1. THE INDEPENDENT MONITOR
Mark Filip of Kirkland & Ellis was appointed as the Independent Monitoring Trustee
by the district court shortly after entry of the revised consent decree.
25
Mr. Filip is
charged with “monitor[ing] Defendants’ compliance with the terms of the Amended
Final Judgment.”
26
His primary duties include:
• Providing “periodic reports” to the United States and the various states that
were parties to the initial merger challenge (the “Plainti States”);
27
and
• Promptly reporting any violations, including written ndings and
recommendations for appropriate remedies, to the United States.
28
Live Nation is responsible for paying the fees and expenses incurred by Mr. Filip in his
independent monitoring capacity.
The revised consent decree also requires Live Nation to appoint an internal employee
as an antitrust compliance ocer. While the identity of the compliance ocer must be
provided to DOJ and the Plainti States, that information is not published on the court
docket or subject to the supervising court’s scrutiny. The compliance ocer is tasked
with:
24 Ticketmaster, Am. Final J’ment (Dkt. 29), at 40 (D.D.C. Jan. 28, 2020).
25 Mr. Filip previously served as deputy attorney general at DOJ and as a federal district court judge in the Northern District of
Illinois. Kirkland & Ellis, Profile of Mark Filip, P.C.
26 Ticketmaster, Am. Final J’ment at 30.
27 Plaintiff States include the States of Arizona, Arkansas, California, Florida, Illinois, Iowa, Louisiana, Nebraska, Nevada, Ohio,
Oregon, Rhode Island, Tennessee, Texas, and Wisconsin, and the Commonwealths of Massachusetts and Pennsylvania.
28 Id. at 30–31, 33.
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• Reporting violations of the revised consent decree to the independent monitor
and DOJ and the Plainti States;
• Establishing whistleblower policies and protections;
• Providing annual certications, by the Live Nation CEO, of compliance with the
revised consent decree to DOJ and the Plainti States; and
• Certifying that relevant employees have been appropriately briefed and trained
on the terms of the revised consent decree.
29
Live Nation is also required to provide a copy of the revised consent decree to all
venues to whom Ticketmaster provides services and to all others with whom
Ticketmaster negotiates.
30
2. THE STATES’ ENFORCEMENT POWERS
The Plainti States were given nominal additional authority under the revised consent
decree. They can inspect and copy Live Nation’s records; interview its employees,
ocers, and agents; and demand written reports related to the revised consent decree
to determine whether it was violated or requires modication.
31
But the results of those
investigations are condential.
32
3. FUTURE ENFORCEMENT PROCEEDINGS
The revised consent decree also added a section providing clarity as to future
enforcement proceedings. The rst two paragraphs simply commemorate what is
already true: a violation of the judgment (a court order) amounts to civil contempt, and
Plaintis need only prove violations by a preponderance of the evidence. There is an
arbitration clause, but it is not mandatory. And Live Nation agreed to a penalty of $1
million per violation of the anti-retaliation provisions.
D. ENFORCEMENT FAILURES AND RENEWED SCRUTINY
Live Nation’s consolidated revenue in 2022 totaled $16.7 billion,
33
and it recently reported
that its revenue is up 27% as of its 2023 Q2 earnings report,
34
so it is not surprising that
a single monitor operating with little oversight or transparency—with the threat of nes
disproportionally small compared to Live Nation’s prots—has done little to deter Live
29 Id. at 33–37.
30 Id. at 35–36.
31 Id. at 22–23.
32 Id. at 23–24.
33 Live Nation Entertainment, 2022 Annual Report, at 30.
34 Live Nation, Live Nation Entertainment Reports Second Quarter 2023 Results (July 2023).
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Nation’s anti-competitive and illegal behavior. The consent decree, and the original
complaint led by the Justice Department, makes no attempt to address the myriad ways
Live Nation’s monopoly position and vertical integration harm artists and venues.
Recall that Live Nation has the largest Concert Promotion, Artist Management, and
Ticketing businesses in the live entertainment industry. It also owns and operates a
signicant share of venues (including festival grounds) in the United States.
35
This creates
signicant conicts of interests, discussed more fully in Section I above. In the fall of
2022, the hazards of Live Nation’s uncontested power took center stage when ticket sales
for Taylor Swift’s Eras tour led to systemwide failures at Ticketmaster and eye-popping
pricing for her fans. The oodgates of public outrage opened, and the public saw Live
Nation’s monopoly laid bare.
36
A public letter-writing campaign directed at the Department
of Justice facilitated over 50,000 letters urging the federal government to reopen its
investigation of Live Nation-Ticketmaster.
37
Congressional hearings shed light on the
impossible circumstances artists and venues face under its yoke, and executives oered
little in the way of explanation to the United States Senate. But the question remained:
What can be done?
In November 2022, reports emerged that the Justice Department is in fact investigating
whether Live Nation’s conduct violated the consent decree, accompanied by speculation
that the Justice Department might be gearing up to le an antitrust lawsuit against Live
Nation. According to a Politico report, the Justice Department’s probe is focused on
whether and how Live Nation uses its heft to muscle out competing ticketing services,
concert promoters, and other segments of the multi-billion-dollar live event industry.
38
Meanwhile, attorneys general in both North Carolina and Tennessee announced their own
investigations of Live Nation’s potentially violative business practices.
Anticipating the results of these investigations and other potential enforcement actions
against Live Nation and its subsidiary Ticketmaster, the next section describes what it
would look like to break them up.
35 When Live Nation entered the ticketing market independently in 2007, its ability to choose the ticketing agent for over 75 venues
in the U.S. was a significant factor in its ability to challenge Ticketmaster’s monopoly position. Ticketmaster, Complaint, ¶27.
36 Rachel Treisman, The Senate’s Ticketmaster hearing featured plenty of Taylor Swift puns and protesters, NPR Morning Edition
(Jan. 24, 2023).
37 Press Release, New Campaign Launches to Break Up Ticketmaster, American Economic Liberties Project (Oct. 19, 2022).
38 Josh Sisco, DOJ probing Live Nation and Ticketmaster for antitrust violations, Politico (Nov. 18, 2022).
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RESTORING COMPETITION FOR LIVE
EVENTS AND TICKETING
Our antitrust laws give the courts power “to prevent and restrain” antitrust violations.
39
These remedies take two basic forms: one addresses the structure of the market and the
merged rm, and the other the behavior of the merged rm. Structural remedies generally
will involve the sale of businesses or assets by the oending rm. Behavioral remedies
usually entail injunctive provisions that regulate the rm’s business conduct or pricing
authority. When devising either type of antitrust remedy, restoring competition is the “key
to the whole question,” and courts are “required” to “decree relief eective to redress the
violations, whatever the adverse eect of such a decree on private interests.”
40
Preserving
competition “requires replacing the competitive intensity” that would be “lost as a result
of the merger rather than focusing narrowly on returning to premerger HHI levels.”
41
And
as we have seen in the case of Live Nation, behavioral remedies alone often fail to achieve
this metric because of the diculties that come with monitoring compliance and pursuing
penalties for violations.
As explained above, Live Nation operates several dierent lines of business: Concert
Promotions, Venues, Artist Management, Ticketing, and Sponsorship and Advertising.
Each service—or relevant market—is functionally distinct but vertically integrated under
Live Nation’s corporate umbrella. Live Nation’s Artist Management and Concert Promotion
segments plan concert tours that rely on Live Nation’s Venue Operations, and those
tours are almost always ticketed through Live Nation’s own Ticketing service (under the
Ticketmaster brand). This allows Live Nation to self-preference its own venues and exclude
independent venues from hosting shows, through control of Artist Management, Concert
Promotions, and Venue Operations; blacklist venues that do not use Ticketmaster, through
control of Concert Promotions and Venue Operations; and rob artists of important revenue
streams, through its control of Concert Promotion, Venue Operations, and Ticketing.
Antitrust remedies may include both structural and behavioral components, and behavioral
relief can be useful to facilitate eective structural relief. In the case of Live Nation,
where behavioral remedies have proven insucient, a combination of both structural and
behavioral remedies would best serve the purpose of restoring competition to the market
39 15 U.S.C. § 25.
40 United States v. E.I. du Pont de Nemours & Co., 366 U.S. 316, 326 (1961).
41 See Fed. Trade Comm’n v. Sysco Corp., 113 F. 3d 1, 72 (D.D.C. 2015) (“Restoring competition requires replacing the competitive
intensity lost as a result of the merger rather than focusing narrowly on returning to premerger HHI levels.”).
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for primary ticketing services to major event venues. Thus, the remedies described are best
understood as complementary to each other, and not necessarily eective otherwise.
A. BREAKUP OF LIVE NATION’S CORE BUSINESSES
In government actions, “divestiture is the preferred remedy for an illegal merger or
acquisition.”
42
It is an equitable remedy that serves several functions:
(1) It puts an end to the combination or conspiracy when that is itself the violation.
(2) It deprives the antitrust defendants of the benets of their conspiracy.
(3) It is designed to break up or render impotent the monopoly power which violates
the Act.
43
To restore pre-merger competition in the primary ticketing market, the obvious approach
is also the correct approach: full divestiture of Ticketmaster’s ticket-selling business from
Live Nation’s venue and concert promotion business. In other words, the Department
of Justice should seek complete unwinding of the merger. But while this is necessary,
it is not sucient. To restore competition in the live event industry more broadly, Live
Nation’s three other core businesses—Venue Operations, Concert Promotions, and Artist
Management—must also be spun o into three separate and independent businesses.
By combining Live Nation’s dominance over Concert Promotions and Venue Operations
with Ticketmaster’s dominant Ticketing service, the merger has allowed Live Nation to
maintain and expand its market power across the entire supply chain for live events. As a
vertical merger, it has foreclosed rival ticket-selling services from accessing critical scale
benets, including individual concertgoer data that Ticketmaster leverages to secure third-
party venue contracts. As a horizontal merger, it eliminated direct competition between
Ticketmaster and Live Nation’s own emerging ticket-selling service.
In terms of rm organization, unwinding the merger may also be relatively
straightforward. According to the revised consent decree, Live Nation and Ticketmaster
remain separately incorporated entities. Furthermore, both subdivisions of the merged
rm have maintained separate brands. Whereas the intermingling of sta, corporate
42 Cal. v. Am. Stores Co., 495 U.S. 271, 281 (1990). See also du Pont, 366 U.S. at 329–30 (“Divestiture or dissolution has traditionally
been the remedy for Sherman Act violations whose heart is intercorporate combination and control, and it is reasonable to think
immediately of the same remedy when s 7 of the Clayton Act, which particularizes the Sherman Act standard of illegality, is
involved.”).
43 Schine Chain Theatres v. United States, 334 U.S. 110, 128–29 (1948), overruled on other grounds by Copperweld Corp. v. Indep.
Tube Corp., 467 U.S. 752 (1984); see also United States v. Microsoft Corp., 253 F.3d 34, 103 (D.C. Cir. 2001) (remedies decrees must
“[1] ‘unfetter a market from anticompetitive conduct,’ [2] ‘terminate the illegal monopoly, [3] deny to the defendant the fruits of
its statutory violation, and [4] ensure that there remain no practices likely to result in monopolization in the future’”) (cleaned up)
(citations omitted).
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assets, branding, and intellectual property ownership can present signicant hurdles
to a successful divestiture, here the complexities are likely conned to the licensing of
intellectual property and other service contracts.
And yet, because of Live Nation’s dominance over both Concert Promotions, Venue
Operations, and Artist Management, solving for the primary ticketing market alone will
not fully restore competition for artists, fans, competing ticketing service, and independent
venues and promoters. In theory, concert promoters and artists should have the same core
incentive: making the most money from a show by bringing in fans and keeping venue
costs low. But when the Concert Promoter and the Venue Operator are the same entity,
as is the case with Live Nation, the Concert Promoter is able to charge supra-competitive
prices to the artist. For their part, the artist has no other option because the Concert
Promoter requires them to perform at Live Nation’s venues. Meanwhile, Live Nation has
foreclosed access to markets for more competitive promoters, and independent venues are
unable to compete without use of Live Nation’s immense Concert Promotion service. To re-
establish a fair playing eld, and restore the downstream benets of competitive bidding,
an appropriate remedy requires separation of Live Nation’s Venue Operations, Concert
Promotion, and Artist Management segments.
B. DIVESTITURE OF TICKETMASTER’S HOST PLATFORM
Separating Live Nation into four separate rms will not on its own restore competition,
if the separated entities are able to sustain barriers to entry that have impeded fair
competition and prevented new market entry. To achieve those goals, relief must also
include divestiture of critical intangible assets, to allow rival ticket sellers to eectively
compete in the market. Such was the remedy in United States v. National Lead Co., a case
involving patentees who had entered into a combination in restraint of trade in titanium
pigments and compounds.
44
In that case, the court determined that the granting of
compulsory nonexclusive licenses at a uniform reasonable rate was an appropriate remedy
for restoring competition in the wake of defendants’ anti-competitive restraint.
45
Ticketmaster’s Host Platform, dened in both the original and the revised consent decrees
as the software used by Ticketmaster to sell primary tickets in the United States, is one
such intangible asset.
46
The revised consent decree goes to signicant lengths to require
full and eective divestiture of Ticketmaster’s software via a perpetual, paid-in-full license
to AEG, including ongoing training and support to enable AEG to operate the software
44 332 U.S. 319 (1947).
45 Id. at 338.
46 Ticketmaster, Am. Final J’ment, at 3.
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and to understand the source code so that it may make independent changes to the code.
47
In other words, the divestiture of critical intangible assets was structured to ensure that
competitors had a fair chance at actually competing with Ticketmaster, in the wake of a
decade-plus of anti-competitive foreclosure.
As part of an eective remedy, and in addition to the other specic relief described in
this section, relief should also require the ability for any potential competitor to obtain
a non-exclusive, perpetual license to critical ticketing software. Any such license must
include the ability for the licensee to make independent changes to the code, including
to enhance data security and prevent brokers and resellers from unlawfully accessing
inventory. The license need not be royalty free, and courts have long held that parties
should be compensated for the use or sale of their property, intangible as well as tangible.
48
Nevertheless, to the extent that Ticketmaster’s core software was developed as a result
of its anti-competitive conduct over at least the past decade, making it available to all
potential rivals who had been foreclosed from entering the market is critical for the
restoration of competition.
C. ENDING TICKETMASTER’S VENUE EXCLUSIVITY
AGREEMENTS
Beyond these two forms of divestiture—of the corporate form and of Ticketmaster’s critical
intangible assets—enforcement should also seek to impose behavioral remedies that render
structural relief more eective. Among these tools is putting an end to Ticketmaster’s
anti-competitive exclusivity agreements with live event venues. Disallowing Ticketmaster’s
exclusive dealing agreements does not necessitate an industry-wide prohibition on
exclusivity, but exclusive dealing agreements “are of special concern when imposed by a
monopolist.”
49
The primary concern is that the monopolist will use such agreements “to
strengthen its position, which may ultimately harm competition.”
50
Even prior to its merger
with Live Nation, Ticketmaster had long-term exclusivity agreements that foreclosed rivals’
ability to compete and achieve scale.
51
This included a long-term exclusivity deal between
Ticketmaster and Live Nation.
52
While Ticketmaster’s unparalleled access to concertgoer
data has made it a more attractive option for venues and promoters seeking its advertising
services, it has also abused its monopoly position to extract higher fees from independent
venues and concertgoers alike.
47 Id. at 4.
48 E.g. Nat’l Lead Co., 332 U.S. at 349; Mass. v. Microsoft Corp., 373 F.3d 1199, 1231 (D.C. Cir. 2004).
49 ZF Meritor, LLC v. Eaton Corp., 696 F.3d 254, 271 (3d Cir. 2012).
50 Id. at 270.
51 Ticketmaster, Competitive Impact Statement (Dkt. 2), at 9 (D.D.C. Jan. 25, 2010).
52 Maureen Tkacik and Krista Brown, Ticketmaster’s Dark History, The American Prospect (Dec. 21, 2022).
13AMERICAN ECONOMIC LIBERTIES PROJECT
Breaking up Live Nation and Ticketmaster will be futile if Ticketmaster is able to replicate
one of the merger’s core functions by maintaining exclusive ticket-selling agreements with
Live Nation. But even for venues not owned or managed by Live Nation, the best way to
restore competition and innovation among ticket sellers is to preclude Ticketmaster from
leveraging its scale to obtain exclusive dealing agreements post-breakup, with the eect of
denying market entry to potential rivals. An injunction barring Ticketmaster from entering
into exclusivity agreements for the ticketing of live events is therefore critical to the
successful restoration of competition.
53
D. RESTRICTING LIVE NATION’S RE-ENTRY INTO TICKETING
Courts may also restrict rms from engaging in certain lines of business if doing so would
impair competition in a relevant market. Such was the case, for instance, with the original
consent decree entered into by AT&T and Western Electric in 1956, which precluded
AT&T from engaging in any business other than the provision of common carrier
communications services and Western Electric from manufacturing equipment other than
that used by Bell Electric.
54
The vertical dis-integration of telephone manufacturing from
the provision of telephone service was one piece of the relief sought by the government in
its original case against the defendants, in addition to divestiture by AT&T of its ownership
interest in Western Electric and the termination of exclusive relationships between AT&T
and Western Electric.
55
In the year prior to its merger, Live Nation had begun to emerge as a credible competitor
to Ticketmaster in the primary ticket-seller market, possessing the signicant advantage
of being able to access scale on the level of Ticketmaster simply by ticketing its own
venues.
56
Recognizing Live Nation’s ability to disrupt its dominant position in the market
for primary ticketing services, Ticketmaster sought to renew its contract with Live Nation
before its expiration at the end of 2008, but Live Nation instead chose to license technology
that would enable it to sell tickets on its own.
57
Not coincidentally, Live Nation and
Ticketmaster merged a few months later.
As we have seen, the concerns about Live Nation’s ability to leverage its dominance in
Venue Operation, Concert Promotion, and Artist Management into dominance in Ticketing
53 This would not be an industry-wide ban on exclusive ticketing contracts, a remedy that is likely beyond the power of a court
hearing claims brought against a single entity. Instead, such a ban would need to be pursued through legislation. In any event,
allowing smaller rivals in the Ticketing industry to pursue exclusivity deals while Ticketmaster is under an injunction would give
them a more realistic chance of challenging Ticketmaster’s monopoly position.
54 United States v. Am. Tel. & Tel. Co., 552 F. Supp. 131, 138 (D.D.C. 1982).
55 Id. at 136.
56 Ticketmaster, Competitive Impact Statement (Dkt. 2), at 10 (D.D.C. Jan. 25, 2010).
57 Id.
14AMERICAN ECONOMIC LIBERTIES PROJECT
proved to be well founded. As a result, any eective remedy aimed at restoring competition
in the primary ticket-selling market must restrain the newly divested Concert Promotion,
Venue Operation, Artist Management, and Ticketing entities from re-entering the other
live event segments anew.
58
To permit otherwise would allow those entities, each of which
will remain dominant in their respective markets given their size, to once again foreclose
access to a substantial share of those markets by controlling the sale of tickets and access
to live events.
59
THE LEGAL OPTIONS FOR INSTITUTING
BETTER REMEDIES
A number of options are available to the Justice Department to pursue these remedies.
However, mere enforcement of the existing consent decree is not one. A civil contempt
proceeding, which is coercive and primarily intended to enforce the existing terms,
60
would be grossly insucient, given that the revised consent decree only provides for
a $1 million ne per violation. Criminal contempt, which is limited to a $1,000 ne and
imprisonment up to six months,
61
is likewise insucient. Neither would result in any sort
of divestment or additional behavioral remedies. Moreover, as we have already seen, the
nes are too small to have any deterrent eect when compared to the enormous rents Live
Nation has extracted from consumers, artists, live event venues, and concert promoters in
the last 13 years.
Fortunately, the Justice Department is not without other recourse. To truly restore
competition in the live event industry, the Justice Department can, as outlined below, ask
the district court that entered the revised consent decree to modify it. Or it can le a new
lawsuit alleging violations of the Sherman Act.
58 For example, the newly independent Ticketing entity cannot independently enter the Concert Promotion, Venue Operations, or
Artist Management business, and the newly independent Venue Operations entity cannot enter the Ticketing, Concert Promotion, or
Artist Management business.
59 See generally Brown, supra note 15.
60 Int’l Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 827 (1994).
61 18 U.S.C. § 402.
15AMERICAN ECONOMIC LIBERTIES PROJECT
A. MODIFICATION OF THE EXISTING CONSENT DECREE
1. THE CONSENT DECREE HAS FAILED ITS ESSENTIAL PURPOSE
Federal courts are implicitly empowered to modify consent decrees when they fail to
achieve their stated purpose.
62
This is true “whether the decree has been entered after
litigation or by consent.”
63
A “continuing decree of injunction directed to events to
come is subject always to adaptation as events may shape the need.”
64
Here, the consent
decree’s stated purpose is “the imposition of certain conduct restrictions on defendants,
to assure that competition is not substantially lessened.”
65
It permits the parties to seek
modications, and it imposes no limitations as to either the nature of the modication
sought or the circumstances under which modication may be sought.
66
Nor does it
require a nding that Live Nation has violated the consent decree as a precondition to
seeking such modication.
The Justice Department must only show that (1) the agreed upon remedies are not
achieving their stated goal of preserving competition and (2) additional remedies up
to and including divestment are required. As the Supreme Court stated 55 years ago in
United Shoe,
If the decree has not, after 10 years, achieved its “principal objects,” namely, “to
extirpate practices that have caused or may hereafter cause monopolization, and
to restore workable competition in the market”—the time has come to prescribe
other, and if necessary more denitive, means to achieve the result.
67
Separating Live Nation into four distinct entities—Ticketing, Concert Promotion,
Venue Operations, and Artist Management—will promote substantial competition in
the relevant market originally identied by the Justice Department (“[t]he provision of
primary ticketing services to major concert venues”)
68
by precluding Live Nation from
leveraging its control of artists, venues, and events to squeeze out independent venues
and rival ticketing agents.
62 United States v. United Shoe Mach. Corp., 391 U.S. 244, 251 (1968); see also United States v. Swift & Co., 286 U.S. 106, 114 (1932)
(“We are not doubtful of the power of a court of equity to modify an injunction in adaptation to changed conditions.”).
63 Swift, 286 U.S. at 114.
64 Id.
65 Ticketmaster, Am. Final J’ment at 2 (emphasis added); see also id. at 38 (declaring that the consent decree is meant “to give
full effect to the procompetitive purposes of the antitrust laws and to restore all competition Plaintiffs alleged was harmed by the
challenged conduct in this Amended Complaint [the Live Nation-Ticketmaster merger]”).
66 See id. at 22 (permitting Justice Department access to company for purposes of “determining whether the Amended Final
Judgment should be modified or vacated”); id. at 29–30 (Court retaining jurisdiction “to enable any party to this Amended Final
Judgment to apply to this Court at any time for further orders and directions as may be necessary or appropriate … to modify any of
its provisions”).
67 United Shoe, 39 U.S. at 251–52.
68 Ticketmaster, Complaint, ¶35.
16AMERICAN ECONOMIC LIBERTIES PROJECT
2. DIVESTMENT AND INJUNCTIVE RELIEF ARE PERMISSIBLE
REMEDIES UNDER SECTION 7
Divestiture is the preferred remedy under the Clayton Act: “The very words of § 7
suggest that an undoing of the acquisition is a natural remedy … [and] should always be
in the forefront of a court’s mind when a violation of § 7 has been found.”
69
There are a
number of examples of mergers that have been unwound after consummation, or other
curative divestitures ordered, due to ndings or allegations of violation of Section 7, in
some cases after an initial decision by a federal enforcement agency not to challenge
the merger.
In United States v. Ford Motor Co., the district court ordered Ford to divest itself of a
spark plug factory, a battery factory, and a trade name nine years after the merger was
consummated, citing “the purpose of the antitrust laws and the duty” of the district
court to “free” the “rising wind of new forces in the spark plug market which may
profoundly change it” from “the unlawful restraint imposed upon them so that they
may run their natural course.”
70
In the more recently decided Chicago Bridge & Iron
Company v. Federal Trade Commission, the Fifth Circuit upheld a large administrative
divestment order by the Commission, stating:
Total divestiture is not necessarily inappropriate even though the antitrust
violation found relates to but one aspect of the company thus acquired, especially
where, as here, total divestiture is deemed necessary to restore eective
competition.
71
Here, Live Nation was aorded 10 years to comply with the consent decree it signed
and demonstrate a commitment to pro-competitive behavior. It failed that test, and
the consent decree has proven to be entirely ineective. That the merger has been
consummated is irrelevant. The Hart-Scott-Rodino Act specically provides:
Any action taken by the Federal Trade Commission or the Assistant Attorney
General or any failure of the Federal Trade Commission or the Assistant Attorney
General to take any action under this section shall not bar any proceeding or any
action with respect to such acquisition at any time under any other section of this
Act or any other provision of law.
72
69 du Pont, 366 U.S. at 329–31; Saint Alphonsus Med. Ctr.-Nampa Inc. v. St. Luke’s Health Sys., Ltd., 778 F.3d 775, 792 (9th Cir. 2015);
ProMedica Health Sys., Inc. v. Fed. Trade Comm’n, 749 F.3d 559, 573 (6th Cir. 2014).
70 315 F. Supp. 372, 377 (E.D. Mich. 1970), aff’d Ford Motor Co., 405 U.S. at 575.
71 534 F.3d 410, 441 (5th Cir. 2008).
72 15 U.S.C. § 18a(i)(1). See Fed. Trade Comm’n v. Facebook, Inc., 581 F. Supp. 3d 34, 57 (D.D.C. 2022) (affirming that the HSR Act
allows for post-consummation merger challenges).
17AMERICAN ECONOMIC LIBERTIES PROJECT
And in the case of Live Nation, the real-world experiment facilitated by the existing
consent decree proves that divestiture is the only remedy that will restore competition
in the Concert Promotion, Venue Operation, Artist Management, and Ticketing
segments of the live event industry.
B. NEW SUIT ALLEGING SHERMAN ACT VIOLATIONS
The last option we propose is the initiation of a new lawsuit against Live Nation under
Sections 1 and 2 of the Sherman Act.
73
Section 1 claims require proof “(1) that [d]efendants
entered into a contract, combination, or conspiracy; (2) that this agreement unreasonably
restrained trade under either a per se rule of illegality or a rule of reason analysis; and (3)
that the restraint aected interstate commerce.”
74
Unlawful monopoly maintenance under
Section 2 is “the possession of monopoly power” and “the willful … maintenance of that
power” through “exclusionary conduct as distinguished from growth or development as a
consequence of a superior product, business acumen, or historic accident.”
75
Because Live
Nation’s conduct involves agreements with third parties and independent anti-competitive
agreement, both prongs of the Sherman Act are implicated.
A tying agreement like the one Live Nation frequently forces on its partners is illegal
where:
(1) the tying and tied goods are two separate products; (2) the defendant has market
power in the tying product market; (3) the defendant aords consumers no choice
but to purchase the tied product from it; and (4) the tying arrangement forecloses a
substantial volume of commerce.
76
The contracts Live Nation imposes on its partners—conditioning the hosting of live events
on the use of Ticketmaster as the sole primary Ticketing agent—undoubtedly meet these
criteria.
“‘An exclusive dealing arrangement is an agreement in which a buyer agrees to purchase
certain goods or services only from a particular seller for a certain period of time.’”
77
Courts do not treat exclusivity agreements as per se violations of the Sherman Act.
Instead, their legality “‘… depends on whether the agreement foreclosed a substantial share
73 15 U.S.C. §§ 1, 2. This could be pursued as a civil action or as a criminal one through a grand jury indictment or a criminal
complaint.
74 Reyn’s Pasta Bella, LLC v. Visa U.S.A., 259 F. Supp. 2d 992, 997–98 (N.D. Cal. 2003), aff’d sub nom. 442 F.3d 741 (9th Cir. 2006).
75 Microsoft, 253 F.3d at 50 (quoting United States v. Grinnell Corp., 384 U.S. 563, 570–71 (1966)).
76 Id. at 85.
77 United States v. Google LLC, No. 20-cv-3010, 2023 WL 4999901, at *14 (D.D.C. Aug. 4, 2023) (citation omitted).
18AMERICAN ECONOMIC LIBERTIES PROJECT
of the relevant market such that competition was harmed.’”
78
The primary question is
whether “‘the opportunities for other traders to enter into or remain in that market [were]
signicantly limited.’”
79
Here, Live Nation appears to have used exclusive agreements with
venues to foreclose up to 80% of the primary ticketing market from competition. This
market share is a strong indication of illegality.
The question then becomes what remedies are available. Where an acquisition provided
“the fruits of monopolistic practices or restraints of trade” or “even if lawfully acquired
… may have been utilized as part of the conspiracy to eliminate or suppress competition
in furtherance of the ends of the conspiracy,” divestment remains an appropriate, and
probably necessary, remedy.
80
To require divestiture … is not to add to the penalties that Congress has provided in
the antitrust laws. Like restitution it merely deprives a defendant of the gains from his
wrongful conduct. It is an equitable remedy designed in the public interest to undo
what could have been prevented had the defendants not outdistanced the government
in their unlawful project.
81
Indeed, this was the very remedy approved by the Supreme Court in its seminal 1911
decision ordering that the Standard Oil Trust be dissolved and split into 34 separate
companies.
82
As shown above, that remedy is wholly appropriate in this case as well, and
the complementary behavioral remedies proposed above are ordinary parts of antitrust
litigation.
CONCLUSION
The consent decree that Live Nation and the Justice Department crafted was, for all intents
and purposes, a 13-year real world experiment in the eectiveness of behavioral remedies
and independent monitors. It proved that this lighter approach to merger enforcement is
ineective when one entity has monopoly power over an entire industry. In the face of
78 Id. (citation omitted).
79 Id. (quoting Microsoft, 253 F.3d at 69).
80 United States v. Paramount Pictures, 334 U.S. 131, 152.
81 Schine Chain Theatres v. United States, 334 U.S. 110, 128 (1948), overruled on other grounds by Copperweld Corp. v. Indep. Tube
Corp., 467 U.S. 752 (1984).
82 Standard Oil Co. of New Jersey v. United States, 221 U.S. 1, 81–82 (1911).
19AMERICAN ECONOMIC LIBERTIES PROJECT
skyrocketing prices for consumers, depletion of artist earnings, and erosion of independent
and locally owned venues, it is time for Live Nation to be broken up, so competition in
the live event industry can thrive, artists can earn a living wage, and consumers looking
for joyous moments in a post-COVID world can see their favorite artists without paying
ransom prices.
* * *
The American Economic Liberties Project is a non-prot and non-partisan organization
ghting against concentrated corporate power to secure economic liberty for all. We do not
accept funding from corporations. Contributions from foundations and individuals pay for
the work we do.
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