Five weeks of testimony, internal company emails, and courtroom theater came to a close Thursday (April 9) when the Live Nation antitrust trial headed to the jury. After closing arguments in Manhattan federal court, Judge Arun Subramanian delivered instructions to the panel, which was expected to begin deliberations Friday. The outcome could reshape the live entertainment industry as fundamentally as any business decision in its history.
The 34 states still pressing the case after the Department of Justice settled made their final argument through attorney Jeffrey Kessler, who framed the trial’s central question in blunt terms. Pointing to internal communications and testimony from Live Nation executives, Kessler told jurors the evidence showed the company had “violated antitrust laws and it is time to hold them accountable.” He reminded them that in a civil trial, the standard is preponderance of the evidence, meaning the states only needed to prove their case by more than 50%.
Kessler returned to some of the trial’s most memorable evidence. Live Nation CEO Michael Rapino’s own words, describing how the company had “built an incredible moat around the castle of Live Nation,” became the organizing metaphor for the states’ closing argument. Kessler told jurors that Live Nation had spent years “digging the moat around the monopoly castle in order to protect their market position.” He also revisited an internal note from a top executive about using a “velvet hammer” in acquiring a rival regional promoter, and the now-infamous “robbing them blind, baby” message in which a Ticketmaster employee appeared to boast about ancillary fee pricing. “Who talks like this?” Kessler asked the jury. “I’ll tell you: Monopolists.”
The states argued that Live Nation controls 86% of the market for concerts and 73% of the overall market when sports are included, figures they said demonstrated monopoly power that goes beyond legitimate scale. Kessler also pointed to economist Dr. Nicholas Hill’s conclusion that monopoly power existed in the key ticketing markets at issue, and argued that high barriers to entry and substantial switching costs for major venues kept competitors from mounting any real challenge.
Live Nation’s lawyer David Marriott pushed back on every front. He told jurors the states had failed to prove their claims and reframed the company’s position in terms CEO Rapino used repeatedly throughout testimony: “We are the biggest entertainment company and ticketer in the country. We’re not hiding from that fact. We are big. That is not against the laws in the United States. Success is not against the antitrust laws in the United States.”
On the damaging internal messages, Marriott acknowledged that employees sometimes say “stupid stuff” but said the comments reflected “fierce competitors” talking about taking on the competition, not evidence of illegal monopoly conduct. He defended the company’s decision not to immediately discipline the employees involved, adding: “We also don’t just ax somebody because they made a mistake years in the past.” His broader argument was that venues, artists, and fans are doing better than ever in a thriving live entertainment market, and that what the states characterized as anticompetitive pressure was simply a company outcompeting its rivals on merit.
