Live Nation's lawyers want the judge presiding over the company's historic antitrust case to reject Justice Department claims that the concert promoter uses illegal tying arrangements to operate its theaters, arguing that it has no obligation to allow rival promoters to use the premises it owns or manages.
Live Nation's co-lead legal counsel Alfred C. Pfeiffer of Latham Watkins argued in a July 17 letter to Justice Arun Subramanian that this practice, described as “denial of agreement,” is common in concerts and protected by Supreme Court precedent.
“Generally speaking, the Sherman Act does not limit the long-recognized right of a [defendant] engages in an entirely private enterprise, to freely exercise its own independent discretion as to the parties with which to do business,” Pfeiffer writes, citing a 2004 decision in a case brought by Verizon.
Live Nation therefore has no obligation to “reach out to new entrants” or help rivals “survive or expand,” Pfeiffer notes, adding, “the unquestioned freedom to refuse to deal with rivals (in all but the rarest of circumstances, which do not even exist in this case) is based on fundamental antitrust principles.”
In the government's 128-page complaint against Live Nation, attorneys in the DOJ's antitrust division allege that Live Nation “unlawfully regulates artists' access” to the 56 outdoor theaters the company controls by forcing artists to choose “Live Nation as promoter of concerts in its venues.”
Pfeiffer's letter was born out of a June 27 pretrial hearing in which Judge Subramanian invited Live Nation's lawyers to submit a letter to the court identifying issues Live Nation had with the DOJ's complaint “as opposed to advancing those of arguments after” an amended complaint is filed,” Pfeiffer wrote. “His Honor advised that doing so would provide the defendants with “a good argument that these claims should be dismissed with prejudice'' if the government cannot overcome Live Nation's arguments on a motion to dismiss.
Live Nation's lawyers also want to dismiss antitrust claims filed by 30 state attorneys general along with the DOJ, including 22 separate claims under their own state laws.
“These allegations are clear and conclusory,” Pfeiffer writes, noting that many of the state AGs simply repeat the DOJ's allegations without specifically alleging “the elements of each state law claim” or stating “what conduct allegedly violates the said state laws.”
Pfeiffer also criticized the states for failing to specify their claims for damages and argued that many of the state objections were barred by different states' statutes of limitations.
The DOJ has until Sept. 18 to respond to Live Nation's letter.
from our partners at https://www.billboard.com/pro/live-nation-letter-judge-toss-amphitheater-antitrust-charges/
