On January 28, 2020, US District Court for the District of Columbia entered an Amended Final Judgment in the merger between Live Nation Entertainment, Inc. and Ticketmaster Entertainment. The Amended Final Judgment modifies and extends the original 2010 judgment. In addition to modifying and extending the final judgment, the amended judgment allows for easier detection and enforcement of any future violations.
In 2010, the Department of Justice (DOJ) and the Attorneys General of nineteen plaintiff states entered into a consent decree regarding the merger of Live Nation Entertainment, Inc. and Ticketmaster Entertainment. The original judgment required divestitures and included non-retaliation provisions, among other remedies. After nine years, the DOJ determined that Live Nation had violated the original judgment repeatedly by engaging in discriminatory or retaliatory activity against venues that do not use Ticketmaster ticketing services. The parties agreed to an amended judgment, which the DOJ explained was necessary to achieve the benefit of the 2010 settlement. It represents the DOJ's most significant enforcement action relating to an existing consent decree in 20 years. On January 28, 2020, the court entered the parties' agreed to amendments and entered an Amended Final Judgment to clarify, modify, and extend the original judgment.
The Amended Final Judgment
In addition to continuing to be governed by all of the obligations under the original judgment, the Amended Final Judgment provides additional requirements, clarifies the terms of the original agreement, and allows for specific penalties in case of violations. The Amended Final Judgment includes:
Clarification that Live Nation, in addition to not engaging in retaliation, explicitly may not:
threaten to withhold concerts or other events from venues if that venue decides to contract with a company other than Live Nation for primary ticketing services;
condition, retaliate for, or threaten to condition providing concerts or other events on the decision by the venue to use Live Nation's ticketing services; or
argue that the judgment applies only to Live Nation content.
A stipulation that particular conduct may violate more than one provision.
Specific information about individuals to be noticed with any communications Live Nation is required to send to the DOJ.
Appointment of an independent monitor, at cost to Live Nation, charged with:
the power and authority to monitor compliance with the amended judgment; and
reporting on Live Nation's compliance, including by providing periodic reports regarding Live Nation's efforts to comply with obligations.
A requirement that Live Nation appoint an internal antitrust compliance officer, who will ensure that:
all relevant employees receive a copy of the Amended Final Judgment;
reasonable notice of the meaning and requirements of the Amended Final Judgment are provided to relevant employees;
relevant employees receive regular briefings, with written materials, regarding the meaning and requirements of the Amended Final Judgment;
new relevant employees are trained on the meaning and requirements of the Amended Final Judgment;
relevant employees certify that they have read the amended judgment, are not aware of any violations that have not been reported, and understand that failure to comply may result in an enforcement action; and
relevant employees are aware that they can disclose violations or potential violations without reprisal.
A notice provision that requires Live Nation to provide a copy of the Amended Final Judgment to:
every venue owner that receives, or is in negotiations to receive, primary ticketing services from Ticketmaster; and
every venue owner at the beginning of any negotiation with Ticketmaster or Live Nation related in whole or in part to primary ticketing services.
Reporting, investigations, and certification requirements to ensure that:
any violations or potential violations are reported, documented, and relevant evidence is preserved;
a whistleblower protection policy is in place; and
certification from Live Nation's CEO annually that the company is in compliance with all of the provisions of the Amended Final Judgment.
Penalties for future violations of $1 million per violation, which is defined as all like activity that occurs during a single contracting cycle, though the penalty may be increased if the violations are different in kind, for example:
if there are multiple threats to condition provision of events during the same contracting cycle, the penalty would be $1 million; but
if there are multiple threats to condition and also a retaliation in the same contracting cycle, Live Nation would pay $2 million.
In addition, Live Nation was required to pay $3 million for costs associated with the DOJ's investigation. The Amended Final Judgment extends the term of most provisions of the final judgment, which will now expire on December 31, 2025.