“Robbing them blind.” “Velvet hammer.” “Boil the frog.”
Those phrases, drawn from internal documents of Live Nation, the concert giant that includes Ticketmaster, on Thursday became weapons in the hand of Jeffrey L. Kessler, a lawyer for the 34 states that have brought an antitrust case against the company.
“Who talks like this? What type of company uses this language?” Mr. Kessler asked the jury during closing arguments at Federal District Court in Manhattan. “The answer, I think you will find, is a monopolist who views itself to be above the law.”
The suit, brought by the Justice Department almost two years ago, accuses Live Nation of operating a wide-reaching monopoly in the live entertainment industry that has suffocated competition and driven up prices for millions of fans, charges that Live Nation disputes vigorously.
David R. Marriott, a lawyer for the concert company, contended that the statements Mr. Kessler read — found among the blizzard of documents produced as evidence during the six-week trial — were distractions from the real evidence in the case, which he said favored Live Nation.
“This has been a trial by snippet and by insinuation,” Mr. Marriott said, adding that Live Nation did “not condone those statements in any way, shape or form — they were wrong.” (The “robbing them blind” comment came from a private Slack exchange between two Ticketmaster employees who bragged about overcharging fans for amenities; the other statements were made by Live Nation executives about touring and ticket pricing.)
The trial has been closely watched in the music industry, where Live Nation is a colossus, as well as in policy circles, as a test of the Trump administration’s stance on antitrust enforcement. The case was rocked after only three days of testimony when it was revealed that the Justice Department had reached a settlement with Live Nation — though the deal was not immediately disclosed to the court, drawing the ire of Judge Arun Subramanian, who called the delay “mind-boggling.”
A majority of the states balked at the Justice Department’s settlement and decided to continue the case on their own.
The heart of the case before the jury involves accusations that Live Nation has pressured artists to use the company’s promotions arm to play at its amphitheaters, and has also forced venues — sometimes with threats — to sign exclusive deals with Ticketmaster or risk losing access to Live Nation’s popular tours.
Live Nation’s monopoly, Mr. Kessler said, operates through the company’s “flywheel” of interlocking businesses. He cited comments that Michael Rapino, the longtime chief executive, once made to investors, boasting that “we have incredible market power around the world” as a result of being by far the biggest concert promoter.
According to one of the government’s expert witnesses, Ticketmaster has an 86 percent share of concert ticket sales at “major concert venues,” a selection of about 250 amphitheaters and arenas around the country that the government has focused on.
With all that power, Mr. Kessler said, Live Nation is “digging the moat deeper around the monopoly castle.”
Mr. Marriott acknowledged that Live Nation is powerful. “We are big,” he said. “That is not against the law.” He added: “We are fierce competitors.”
But he called the government’s case a “house of cards” with no persuasive evidence that the company has broken any antitrust laws or harmed competition.
He also challenged the definition of “major concert venues” as a fabrication that distorts the truth about the concert market, which Mr. Marriott said is much larger and involves a greater array of competitors.
“This is a gerrymandered market,” Mr. Marriott said, “made up for purposes of this litigation.”
The case involved evidence and testimony that Live Nation had regularly blocked other promoters from putting on shows in their venues, but in his closing Mr. Marriott said that was the company’s prerogative. He argued that the overall live music industry is large and growing, which he said undercut the plaintiffs’ claim that competition has been harmed.
“There is more competition today,” Mr. Marriott said, “than ever before.”
Some of the most visceral evidence in the case involved accusations that Live Nation threatened venues to use Ticketmaster, and even retaliated against one venue that did not.
Early in the trial, jurors heard a recorded phone call in which Mr. Rapino argued with the head of the Barclays Center in Brooklyn, which had dropped Ticketmaster for a competitor. Mr. Rapino said it was “going to be a tough time to deliver tickets for concerts,” despite a contract that required Live Nation to make its best efforts to send 25 shows a year to the arena.
When he took the stand, Mr. Rapino denied making threats, saying he had been blindsided by the loss of the ticketing deal and had only been referring to the competitive realities of the New York concert market.
In his testimony, Mr. Rapino portrayed himself and his company as simply a hard-working player in a sophisticated, ultracompetitive industry. “The idea of business in general,” Mr. Rapino testified, “is that you want to build a better mousetrap than the other guy.”
Mr. Kessler referred to that statement on Thursday. “Who are the mice they are seeking to trap?” he said, saying the answer was fans, venues, artists and Ticketmaster’s competitors. “They are the mice. They are the ones who suffered the consequences of the defendant’s unlawful conduct.”
If Live Nation is found liable of violating antitrust laws, Judge Subramanian will decide whether to break the company up, as the government requested, or determine another remedy. The states are also asking for monetary damages; an expert witness computed that Ticketmaster overcharged customers up to $1.70 per ticket, though Live Nation has strongly disputed the methodology.
Anusha Bayya contributed reporting.
Ben Sisario, a reporter covering music and the music industry, has been writing for The Times for more than 20 years.
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