The federal judge overseeing the DOJ’s monopoly lawsuit against Live Nation established a protective order this week to restrict the concert and ticketing giant’s in-house legal team from accessing particularly sensitive documents from their competitors, with the decision coming days after several competing companies voiced retaliation concerns.
The protective order, effective Monday, creates a two-tier system to designate classified company records that Live Nation’s competing companies have given to the DOJ. Live Nation’s two in-house attorneys — executive vice president of corporate and regulatory affairs Dan Wall and senior vice president of litigation Kimberly Tobias — will be allowed access to the lower tiered “confidential” materials that includes certain “non-publicly disclosed financial information, previously non-publicly disclosed material relating to ownership or control of any non-public company and non-publicly disclosed business plans” among other qualifications.
But they won’t be allowed to review “highly confidential materials” which includes “trade secrets, personnel files, and “evaluation of the strengths and vulnerabilities of product or service offerings.” Only Live Nation’s outside counsel, who doesn’t handle any of the company’s business dealings beyond this lawsuit, will be allowed to review the higher tiered documents. The party filing the documents will be responsible for labeling them as confidential or highly confidential.
The order rule comes after three of Live Nation’s competitors — AEG, SeatGeek and ASM Global — submitted letters to the court voicing concerns about Live Nation being allowed to review their most sensitive data they gave to the DOJ.
Aside from more generalized concerns about dissemination of company documents they were compelled to give to the DOJ, they all referenced the claims detailed in the lawsuit in which Live Nation was accused of retaliating against competitors who did business with ticketing services other than Ticketmaster.
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The retaliation claims were among the most notable aspects of the complaint filed in May, and a no-retaliation provision was a key aspect of the consent decree Live Nation entered into with the DOJ when the promoter and Ticketmaster merged in 2010. Live Nation’s critics have long voiced concern about retaliation over Ticketmaster, though not often as publicly as in the letters filed in court this week.
A rep for Live Nation did not immediately reply to request for comment. The company has repeatedly denied the allegations from the DOJ. Reps for AEG and SeatGeek declined to comment beyond the letters they filed. ASM Global didn’t respond to request for comment.
Marcus Asner, an attorney for ASM Global — a venue management company that oversees major venues including Las Vegas’s Allegiant Stadium, LA’s Crypto.com Arena and New Orleans’ Caesars Superdome — wrote that “giving Defendants access to ASM’s materials about ASM’s dealings with Defendants’ competitors would risk the very retaliation of which Defendants are accused.”
SeatGeek attorney William Kalema wrote that the company was “deeply concerned about the provision of access to confidential materials to in-house attorneys, especially those who are involved in competitive decision-making.” Kalema further wrote that SeatGeek’s concern “is heightened by the fact that this case is largely about Defendants’ history of threatening and retaliating against companies that do business with Defendants’ competitors.”
“SeatGeek hears on at least a weekly basis from venues that are reluctant even to meet with SeatGeek for fear of retaliation from Defendants,” Kalema wrote. “If the market were to learn that venues’ contracts and other communications with Ticketmaster’s competitors were made available to Defendants’ senior management, SeatGeek’s ability to market its product would be hindered even further.”
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AEG said in its letter that it gave the DOJ “hundreds of thousands of documents, including from the files of senior management in ticketing and concert promotions, constituting AEG’s most sensitive and competitively significant materials.”
The company claimed that the documents also contained “the detailed terms of tour and festival promotions offers that AEG makes to the same artists receiving competing offers from Live Nation” as well as “documents detailing AEG’s efforts to compete with Ticketmaster for primary ticketing contracts.”
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In the letter, AEG attorneys Justin Bernick and Claude Szyfer further specified concerns for Wall to get access to the most classified of documents given his business-oriented responsibilities outside of the antitrust suit. They said that Wall had “established himself as Live Nation’s primary spokesperson in the lead up to and wake of Plaintiffs’ Complaint.”
“Disclosure of these materials to Live Nation creates a substantial risk that discovery in this matter might facilitate the very antitrust violations that the lawsuit against Live Nation was intended to remedy,” Bernick and Szyfer wrote.
