DOJ
Live Nation’s top two in-house attorneys will not be allowed to access “highly confidential” documents produced by competitors like AEG Presents and SeatGeek in the antitrust lawsuit filed against the touring giant by the Department of Justice, though it will be granted access to less sensitive “confidential” documents under strict conditions limiting how the information is used and shared, according to a protective court order signed Monday (July 29) in the Southern District of New York.
A federal judge overseeing the case agreed to establish the two-tiered system for dealing with non-public documents the DOJ subpoenaed from Live Nation competitors as part of its ongoing investigation. For the last six weeks, DOJ antitrust lead trial counsel Bonny Sweeney has been in talks with Live Nation, which is accused of operating its ticketing and concert promotion businesses as a monopoly, about restricting access for the company’s in-house lawyers — executive vp of corporate and regulatory affairs Dan Wall and senior vp of litigation Kimberly Tobias — to confidential information handed over by competitors. Attorneys for Live Nation have argued that granting Wall and Tobias access to confidential information is vital in helping the company prepare its defense.
“Mr. Wall and Ms. Tobias are litigation counsel in good standing and officers of the court,” Live Nation outside counsel Alfred C. Pfeiffer wrote in a letter to New York federal judge Arun Subramanian. “Both have been bound by numerous protective orders and never been accused of violating those orders. Their access to confidential information in no way puts such information at risk.”
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Government lawyers counter that even if Wall and Tobias “pledge not to use any information they receive other than for this case, they can’t unsee what they have seen,” Subramanian wrote in a July 23 court order trying to resolve the confidentiality access question. Two days after that, attorneys for SeatGeek, AEG and ASM Global filed letters asking Subramanian to prevent Wall and Tobias from viewing any sensitive documents produced by the companies.
The files SeatGeek produced for the government “include documents that a company would never want to fall into the hands of any competitor,” SeatGeek attorney William Kalema wrote to the court.
“SeatGeek hears on at least a weekly basis from venues that are reluctant even to meet with SeatGeek for fear of retaliation from Defendants,” the letter continued. “If the market were to learn that venues’ contracts and other communications with Ticketmaster’s competitors were made available to Defendants’ senior management, SeatGeek’s ability to market its product would be hindered even further.”
Attorneys for AEG said they had produced “hundreds of thousands of documents” for the DOJ, including the company’s “most sensitive and competitively significant materials.” AEG attorney Justin Bernick took particular issue with Wall over past statements Wall has made in the media and on Live Nation’s blog, arguing that Wall has often acted as the company’s spokesperson rather than its lawyer.
After a brief hearing, Subramanian ruled that Wall and Tobias would not be allowed to view documents marked as highly confidential — meaning those involving trade secrets, customer lists, current or future financial and strategic information, private contract terms, personnel files, planning documents, and anything deemed sensitive by the courts — and that those documents can only be viewed by Live Nation’s outside attorneys. Wall and Tobias can, however, view confidential information — defined as previously non-public financial information, material related to ownership of non-public companies, business plans and marketing campaign documents related to product development.
In order to view confidential court files, Wall and Tobias must agree not to participate or advise Live Nation on “competitive decision-making” or litigation against AEG or SeatGeek — except for litigation tied to the DOJ lawsuit — for two years after the final confidential documents are reviewed.
The “highly confidential” and “confidential” designations will be determined by those producing the documents, Subramanian wrote in the earlier July 23 opinion, noting that “if it turns out that vast swaths of the record are improperly designated highly confidential, the Court will step in” and require “a page-by-page review of documents by the producing party on a tight timeframe or appropriate modifications to the protective order.”
Billboard has reached out to Live Nation for comment on this story. The trial for USA v. Live Nation Entertainment is scheduled to begin March 2, 2026.
Attorneys for Live Nation want the judge presiding over the company’s historic antitrust case to dismiss the Department of Justice’s allegations that the concert promoter uses illegal tying arrangements to operate its amphitheaters, arguing it has no obligation to allow rival promoters to use the venues it owns or manages.
Live Nation’s co-lead trial counsel Alfred C. Pfeiffer of Latham Watkins argued in a July 17 letter to Judge Arun Subramanian that this practice, described as a “refusal to deal,” is common in the concert business and protected by Supreme Court precedent.
“As a general matter, the Sherman Act does not restrict the long recognized right of a [defendant] engaged in an entirely private business, freely to exercise his own independent discretion as to parties with whom he will deal,” Pfeiffer writes, quoting a 2004 ruling in a case brought by Verizon.
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Accordingly, Live Nation has no obligation “to extend a helping hand to new entrants” or help its rivals “survive or expand,” Pfeiffer notes, adding, “the unimpeachable freedom to refuse to deal with rivals (in all but the rarest circumstances, which are not even arguably present in this case) rests on bedrock antitrust principles.”
In the government’s 128-page complaint against Live Nation, attorneys with the DOJ’s antitrust division allege that Live Nation illegally “conditions artists’ access” to the 56 outdoor amphitheaters the company controls by forcing artists to chose “Live Nation as the promoter for concerts at its venues.”
Pfeiffer’s letter was born out of a June 27 pre-trial hearing in which Judge Subramanian invited Live Nation’s attorneys to file a letter to the court identifying issues that Live Nation had with the DOJ complaint “as opposed to advancing those arguments after” an amended complaint is filed,” Pfeiffer wrote. “Your Honor advised that doing so would provide Defendants ‘a good argument that those claims should be dismissed with prejudice’” if the government cannot overcome Live Nation’s arguments on a motion to dismiss.
Live Nation lawyers also want the antitrust claims filed by 30 states’ attorneys general alongside the DOJ dismissed, including 22 separate claims under their own state laws.
“These claims are threadbare and conclusory” Pfeiffer writes, noting that many of the state AGs merely repeat the DOJ’s allegations without specifically alleging “the elements of each state-law claim” or citing “what conduct allegedly violates the state laws in question.”
Pfeiffer also criticized the states for failing to detail their damage claims and argued that many of the state objections were barred by different state’s statute of limitations.
The DOJ has until Sept. 18 to respond to Live Nation’s letter.
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The Justice Department and several states are joining together to sue Live Nation Entertainment in connection to Ticketmaster, whose side accuses the company of owning a monopoly on live entertainment. Justice Department officials are accusing Ticketmaster of blocking out potential opportunities for other companies by striking exclusive ticket and venue deals that essentially gave them the lion’s share of the market.
The New York Times reports that based on the accounts of unnamed invidious close to the matter, the federal government, along with a grouping of states that were not announced in the outlet’s report. The position that will be taken when the matter goes to court is the accusation that Live Nation struck exclusive ticketing contracts with certain concert venues and served as the main ticket hub for concert tours.
Further, the government will claim that other business factors such as venue management according to insiders, aided Live Nation in becoming a monopoly by passing on high costs to consumers and causing damage to any competitors’ efforts to enter the field. Further, the DOJ will state within the lawsuit that tours that were promoted by the entertainment company were more likely to play shows where Ticketmaster had exclusive rights to ticket sales.
Ticketmaster reportedly sells about 600 million tickets annually according to global tallies. It is estimated that the company’s ticketing business is responsible for between 70 and 80 percent of major concert venues domestically.
In 2023, a congressional hearing was held that was sparked by a frenzied Taylor Swift tour presale event which millions of fans were unable to participate in. Both Republicans and Democrats in the U.S. Senate called the company a monopoly
The lawsuit will be filed in the Southern District of New York.
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The U.S. Department of Justice is planning to sue Live Nation over alleged violations of federal antitrust laws, according to a report by the Wall Street Journal.
A lawsuit will be filed within weeks that alleges the concert giant leveraged its dominance over the live music industry to undermine competition for ticketing, the Journal reported Tuesday, citing people familiar with the matter. Few other details about the planned case were revealed.
Live Nation has faced widespread criticism from angry fans and lawmakers since its botched handling of Taylor Swift’s “Eras” tour in 2022. Days after the incident, news broke that the DOJ had already been investigating Live Nation for months over potential antitrust violations.
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Representatives for Live Nation and the DOJ did not immediately return requests for comment from Billboard.
Since Live Nation and Ticketmaster merged in 2010, the company has long faced criticism that it exerts an unfair dominance over the market for live concerts. The DOJ approved the merger at the time, but imposed a so-called consent decree designed to prevent the company from abusing its position. Those restrictions were set to expire in 2020, but they were extended by five years after the DOJ accused Live Nation of repeatedly violating the decree.
That same criticism resurfaced in late 2022 with the disastrous roll out of tickets to Swift’s tour, which saw widespread service delays and website crashes as millions of fans tried – and many failed – to buy tickets. Live Nation pinned the blame on a “staggering number of bot attacks,” but lawmakers quickly argued that the incident was the result of a market dominated by one company.
“Ticketmaster’s power in the primary ticket market insulates it from the competitive pressures that typically push companies to innovate and improve their services,” said Sen. Amy Klobuchar (D-Minn.), the chair of the Senate subcommittee for antitrust issues.
In December 2022, the New York Times reported that DOJ had already been investigating Live Nation for months before the Swift debacle, including reaching out to venues across the country to ask about the company’s conduct. A year later, Reuters reported that the probe was ongoing, with federal investigators focusing on whether Live Nation imposed anticompetitive agreements on venues.
Last year, Live Nation hired Dan Wall, a veteran competition attorney who previously headed the antitrust practice at the law firm Latham & Watkins, as an executive vice president for corporate and regulatory affairs. In a blog post last month, Wall publicly defended the company against allegations similar to those that could be coming in the DOJ’s lawsuit, arguing that ticket prices were set by artists and driven up by the forces of supply and demand.
“In the ongoing antitrust attacks on Live Nation and Ticketmaster, a constant theme is that their alleged ‘monopolies’ are responsible for high ticket prices,” Wall wrote. “Rhetorically, that’s understandable, because if you want to rile up fans against Live Nation and Ticketmaster, there is no better way than to blame them for something you know fans dislike.”
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