News & Insights

Not the Show We Were Expecting -
Live Nation Monopolization Trial Ends with Federal Settlement and State Litigation Still in Play

• On March 3, 2026, the Department of Justice and thirty-nine states (plus the District of Columbia) got underway with their monopolization trial against Live Nation and its subsidiary Ticketmaster in the  U.S. District Court for the Southern District of New York. The groundwork for the trial began years earlier, with the Department of Justice's complaint filed nearly two years before and, famously, the public outcry over ticketing and support issues during Taylor Swift's 2022 "Eras" tour. 
   

• The claims brought against Live Nation/Ticketmaster involved both unilateral (monopoly) and joint (exclusivity) theories of harm in a range of proposed markets - (1) a market for promotion services in which the artists are the consumers and Live Nation’s promotion service is the monopolist; (2) market for venues in which the artists are the consumers and Live Nation’s large amphitheater venue service is the monopolist; (3) a market for concert-booking services in which the venues are the consumers and Live Nation’s promotion service is the monopolist; (4) two markets for primary ticketing services, in which the venues are the consumers and Live Nation’s ticketing service is the monopolist; and (5) a market for primary ticketing services in which the fans are the consumers and Live Nation’s ticketing service is the monopolist.
  
  Ultimately, by the time of trial, other than state claims, only the claims relating to the artist-facing amphitheater market and the claims concerning the venue-facing primary ticketing market, survived earlier dismissal at the summary judgement stage.
   

• Just days into the trial it was . . . over for the lead plaintiff based on a tentative settlement between the Department of Justice and Live Nation. That settlement involved a blend of structural relief (selling 13 exclusive booking agreements with amphitheaters it controls, thereby ending Live Nation's sole promoter rights at those venues), with a long list of behavioral remedies (opening up access to its back-end system to rival third party sellers, establishing four year maximum exclusivity limits at venues, capping service fees at its amphitheaters to 15% of the ticket face value, and barring retaliation or threatened retaliation against artists for using rivals). In addition, financial payment to states of up to  $280 million in damages is in the mix.
  
   

• Where things go from here is bound to get interesting - over two dozen states (and the District of Columbia) have rejected the settlement and plan to proceed at trial - and several other states have announced concerns with the settlement that could also include them in the ongoing litigation. As for the federal settlement, largely viewed as a significant win for Live Nation, it still remains subject to the approval of the District Judge, Arun Subramanian.
  
   

Finalized Department of Justice/Federal Trade Commission Merger Guidelines Released

• On December 18, 2023, the DOJ and FTC jointly published their final revisions to the Merger Guidelines, just short of five months from their July 19, 2023 publication in draft.
   

• The finalized Guidelines are a continuing signal of the antitrust regulators' willingness to push the boundaries of antitrust enforcement and to lean in the direction of aggressive policing of commercial activity without providing any clear roadmap for companies on how to comply with the law.
   

• The aggressive stance of the Guidelines, and the challenges for companies to understand - in advance - where the lines will be drawn, were signaled in recent days in various ways including through the DOJ's withdrawal (without replacement) of various healthcare related policy statements.
   

• Although the final version modified some language from the draft that had drawn criticism, especially around the arguing for procompetitive efficiencies, and in dropping an explicit 50% foreclosure share as a key marker in evaluating vertical mergers, the Guidelines are largely unchanged from and remain an aggressive and expansionist effort by the DOJ/FTC to reset the frame for evaluating potentially anticompetitive mergers.

Anthropic - Generative AI Innovator 
Raises up to $4 Billion Investment from Amazon

• SecondSight Law advised Anthropic in its multi-billion dollar collaboration and AI shaping investment by Amazon, announced on September 25, 2023.
   

• The up to $4 billion investment and strategic collaboration brings together innovative technology and expertise in safer generative artificial intelligence (AI), with an eye to accelerating  the development of Anthropic’s future foundation models and make them widely accessible to AWS customers.

FTC Rolls Up on Private Equity "Roll-Up" Strategies - Welsh Carlson Administrative Complaint

•  The Federal Trade Commission has brought, on September 21, 2023, an administrative complaint that provides the first clear cut example of its intention to target "roll up" strategies by private equity firms. 
   

• The focus of the complaint was the "roll up" of a series of anesthesia practices in Texas by U.S. Anesthesia Partners, Inc. ("USAP") - promoted by its private equity investor Welsh, Carlson, Anderson & Stow  - and alleged by the FTC to have given USAP a monopoly position in the affected Texas markets.
   

• Although the need to analyze and challenge "roll up" acquisitions has been a prominent new theme for the FTC - including in Congressional testimony by FTC Chair Lina Khan as well as in Section 5 of the recently announced DOJ/FTC Draft Merger Guidelines, the new challenge is more an illustration of the FTC's aggressive effort to find a suitable roll-up transaction to challenge rather than itself breaking any new ground in establishing novel theories of harm associated with these kinds of transactions.

Proposed Changes to the HSR Form

• The Federal Trade Commission has published, for public comment, the most significant changes to the Hart-Scott-Rodino Form in over 50 years. Read the proposed changes, announced on June 29, 2023, here. 
   

• SecondSight Law has commented on the proposal, with recommendations to reduce its burdens on filers. You can read the firm's comments here, as well as published in the Federal Register.
  
  Francis Fryscak, the founder of SecondSight Law, presented on an ABA Panel to discuss the impact of the HSR Form proposals, and possible improvements, on September 21, 2023. Details on that panel discussion are linked here, and a replay link of the panel is available here.