In Ticketmaster We Anti-Trust: Too Big to Fail or Failing Big?
Taylor Swift – singer,[1] songwriter,[2] actress,[3] director,[4] cat mom,[5] and now. . .the downfall of Ticketmaster?[6]
During the first two weeks of November, Swifties[7] across the United States scrambled and screamed as Swift announced her return to touring with The Eras Tour.[8] The tour promised music spanning Swift’s music career and marked her first stadium tour since the Reputation Tour in 2018.[9] With glowing success from her re-records[10], the recent release of the Midnights album, and the all-around dedicated fanbase, The Eras Tour was quickly proclaimed to be one of the most anticipated events of 2023.[11]
There’s Been a Glitch
Following the tour announcement, Swifties were instructed to sign up for Ticketmaster’s Verified Fan[12] program with a pre-sale date of November 15.[13] Capital One cardholders were eligible to participate in their own pre-sale and November 18, a Friday, was a general pre-sale.[14] By November 4, Swift announced 8 additional tour dates.[15] On November 9, the registration for the Verified Fan program closed and on November 11, Swift added 17 new dates to the tour – bringing the total to 52 shows across the United States.[16] This does not include the yet-to-be announced international run of the tour.
Leading up to the pre-sale, anticipation was high and the anxiety higher. Ticketmaster released 1.5 million pre-sale codes to Verified Fans and recognized the “historically unprecedented demand.”[17] Ticketmaster later revealed there were a total of 3.5 million requests via the Verified Fan process.[18] Based on past sales, Ticketmaster expected 40% of the invited fans to show up and buy tickets.[19] The pre-sale for the East Coast time zone opened on November 15 at 10 AM local venue time and disaster quickly ensued.[20] Reports came pouring in about “site crashes, extremely long waits, and other technical glitches.”[21] Consumers reported frozen online queues and a nightmarish check-out experience where the coveted ticket would be in the cart, only to boot the user to back to the virtual queue.[22] As this occurred, tickets began appearing on resale websites “priced at $12,000 or more.”[23] To put it lightly, the Verified Fan sale was chaotic. To put it realistically, it was akin to The Hunger Games.[24]
Bad Blood
After a disastrous pre-sale experience, Ticketmaster pulled the November 18 general sale and cited “insufficient remaining ticket inventory.”[25] Ticketmaster reported 14 million people hit the site – not all of them genuine.[26] After a few days, Swift posted to her Instagram and stated, “it really pisses me off” and alleged the Ticketmaster team had reassured her team that they would be able to handle the demand.[27]
Overnight, Swifties became legal experts. Many decried Ticketmaster as a monopoly on the entertainment industry while prominent figures started weighing in.[28] Among the complaints, Swifties and other parties raised concerns violations of the Americans With Disabilities Act ("ADA”). In the mayhem of the pre-sale, some consumers accidentally purchased ADA-accessible seats and were told by the venue to “just enjoy them.”[29] This ultimately took from the limited inventory for ADA seating and highlights Ticketmaster’s failure to verify ADA-status before selling tickets.[30]
Before the month was up, the Justice Department opened an investigation into Ticketmaster and its parent company, Live Nation Entertainment (“LNE”).[31] The investigation is in the early stages but seeks to determine whether the behemoth organization has “abused its power over the multibillion-dollar live music industry.”[32]
The Anti-Hero?
Swifties are understandably upset about the fiasco that was the Ticketmaster sale for The Eras Tour. But are they right? Does Ticketmaster hold a monopoly on the entertainment industry? Did Taylor Swift have a choice on how to sell her tickets and she just picked the wrong one? Was there anything Ticketmaster – or another ticketing agent – could have done differently in the face of a historic and unprecedented demand for a tour that is breaking records[33] before anyone even takes the stage?
These are the lingering questions as the Justice Department,[34] Swifties,[35] Attorney Generals,[36] and Congress[37] turn their eyes towards LNE.
Have We Seen This Before?
Perhaps one of the most repeated refrains is that the control exerted over the entertainment industry by this company violates antitrust laws and constitutes a monopoly.[38] The United States knows all too well what happens when all the power is concentrated within a select few. The Sherman Act,[39] passed in 1890, was the first antitrust law designed to ensure market competition and – most importantly – the freedom of consumer choice.
The Sherman Act sought to “protect trade and commerce against unlawful restraints and monopolies.”[40] Trusts formed with the intent to restrain trade or an attempt to monopolize any part of commerce was deemed illegal.[41] Much like how The Eras Tour has spurred investigation into LNE, there was a tipping point that led to the antitrust legislation of 1890.
From roughly 1870 to 1900, America entered the so-called ‘Gilded Age.’[42] This age saw a boom in wealth as the Transcontinental Railroad expanded the frontier and eased access for goods to travel nationally.[43] Of course, those at the top reaped the most benefits. Railroad tycoons, like Cornelius Vanderbilt,[44] accumulated vast amounts of wealth and dominated various industries.[45] These “robber barons” built their power through monopolization of industries and trusts, not to mention exploitation of poor workers,[46] lack of competition, and other unethical business practices.[47] This took a toll as “the wealthiest 1 percent of American families controlled 51 percent of the nation’s real and personal property.”[48]
America is well-known for its “pull yourselves up by your bootstraps” mentality,[49] so why take issue with those willing to work hard? We are a meritocracy after all, right? Well, through the use of intimidation, exploitation, and deception, these robber barons were not really working all that hard – at least not in comparison to those they stepped on to pull themselves up.[50]
The Standard Oil Name and Money
For example, the Standard Oil Company began operating in 1870, formed a trust in 1882, and was eventually dissolved by the Supreme Court in 1911.[51] In that time, John D. Rockefeller[52] and his partners controlled almost all oil production, processing, marketing, and transportation in the United States.[53] This trust permitted the members to purchase, create, dissolve, merge, or divide any company they owned or operated and severely limited competition.[54] This would result in control over 90 percent of American oil refineries.[55]
While it was hard to prove the effects[56] of the Standard Oil Trust, logic can point to the fallacies of concentrating that much control in one group. What happens if the trust tanked?[57] Would that result in 90 percent of oil production being halted? What incentive would the trust have to improve their practices if they had no competition? What room was there for new market entrants if these affiliates determined who, if anyone, would be worthy for consideration? Not to mention the power to set the price.[58]
But the Sherman Act did its job. In 1906, the U.S. government sued the remnants of the empire and in 1911, the trust had to divest its major holdings.[59] This dissolution is still seen today as some retain the “Standard Oil” name while others operate under well-known brands like Mobil Oil Corporation, Exxon Corporation, and the Chevron Corporation.[60]
So, Is Live Nation Entertainment Nothing New?
With the historical context in mind, let’s fast forward and look at Ticketmaster and LNE. In 2010, Ticketmaster and Live Nation received clearance from the Justice Department to merge.[61] This meant the well-known ticketing agent and the biggest concert promotion company would become one entity – Live Nation Entertainment.[62] Even in 2010, Ticketmaster laid claim to 70% of the U.S. concert ticket market.[63] At the time, Live Nation, primarily focused on venue management and ownership, was responsible for 127 venues.[64] The 2010 approval came with some strings attached as the Justice Department required the merged entity to sell off some subsidiaries, license ticketing software, and prohibited bullying tactics.[65]
The landscape in 2022 looks similar and LNE continues to expand its reach in both ticketing and venue control. The merged company is responsible for over 200 venues, manages 4,000 touring artists, and hosts 40,000 concerts annually.[66] This does not consider the entity’s other entertainment endeavors – which include the NFL[67] and ticket re-sale.[68]
Much like the robber barons of the Gilded Age, this reach has not gone unnoticed or unchallenged. The Eras Tour may have pushed Swifties into action, but many have had bad blood with Ticketmaster for years. In the 1990s, Pearl Jam opted to manage their own ticket sales rather than bowing to Ticketmaster’s control.[69] While they eventually returned to Ticketmaster’s services, they serve as a starting point of push back against Ticketmaster’s control over ticketing.
The bottom line is that LNE’s portfolio includes not only ticket sales and venue management, but also concert promotion, artist management, merchandise, and more.[70] Essentially, the company has a grip on venues, artists, and consumer access to the entertainment industry. This reach shows LNE’s market power, or “the long term ability to raise price or exclude competitors.”[71]
Swifties felt the effect of this in the botched pre-sale, but what happened behind the scenes? The issue the Justice Department raised in 2010 considered whether the merger would limit venue choice in ticketing services.[72] Ticketmaster was required to license its ticketing software and was prohibited from retaliation against venues that opted for another ticketing or promotional service.[73] This would curb not only monopoly power, but also exclusionary conduct that could include predatory pricing or refusal to deal.[74] However, accusations of exclusionary conduct have followed in the wake of the 2010 merger.[75] The Department of Justice previously investigated the company after allegations that various venues were threatened to lose shows if they failed to select Ticketmaster.[76] These allegations are reminiscent of the Gilded Age control where monopolists could determine where to send their business and freeze out those who tried to compete or stray from the approved path.[77] With the extent of their reach, to lose the good will of LNE or the robber barons of yesteryear would be disastrous for those willing to exercise market choice. If these allegations did indeed prove true, it would be evidence of monopolistic exclusionary conduct.
Is there a business justification for “behaving in a way that prevents other firms from succeeding in the marketplace”[78] or would the entertainment industry benefit from more competition? LNE would say the quality of their ticketing system is the reason so many venues opt for Ticketmaster services.[79] This argument parallels Rockefeller’s offer to buy out struggling competitors while conveniently ignoring that Standard Oil’s grip on the market led to their struggle in the first place.[80] Interestingly, LNE’s statement acknowledges they hold a “significant share of the primary ticketing services market” and face competition, but does not name any competitors.[81] Perhaps because there are none.
Look What You Made Them Do
In addition to inquiries from the Justice Department, Congress, and various Attorney Generals, LNE can expect complaints filed with the Federal Trade Commission (“FTC”) and lawsuits in the wake of The Eras Tour debacle.[82]
Recently, a group of Swifties formed Vigilante Legal, LLC, a group of “dedicated lawyers, activists, regulators, scholars, and journalists” aiming to hold big business accountable, including fighting back “against the monopoly that has enabled Ticketmaster to take advantage of artists and fans for years.”[83] In an e-mail complaint to the FTC, the group alleges Ticketmaster made misleading claims to fans resulting in “many consumers feeling misinformed, frustrated, and mentally exhausted only to feel pressured and tricked – all without any clarity on the product they were buying.”[84] The group further argues predatory practices that prevented informed decisions, Americans with Disabilities Act violations, and a lack of market choice for the disgruntled consumers.[85]
While Ticketmaster may argue they control the ticketing market because of a superior service, the debacle of The Eras Tour suggests otherwise. Without actual competition, consumers are hard-pressed to exercise market choice and cannot simply seek tickets elsewhere.[86] Artists and venues, especially those with high demand like Swift and the stadiums she is set to perform in, have little choice but to turn to Ticketmaster. Without interference, LNE can withhold concerts, coerce use of Ticketmaster, and retaliate against those who resist their dominance.[87] This will inevitably lead to the price inflation that comes with being the sole entity capable of filling a demand – indeed many have been decrying Ticketmaster’s service fees for years.[88]
Is this the end of all the endings? Are the Swifties going to bring down LNE and clear up the bad blood that resulted from the 2010 merger? Perhaps “it’s a revolution, the time will come, for us to finally win.” [89]
[1] See, e.g., Taylor Swift, Midnights (Republic Records 2022) (naming Swift’s most recent studio album of the ten she has released throughout her career).
[2] See Danielle Pascual, Here’s Every Song Taylor Swift Wrote on Her Own, Billboard (Jan. 1, 2022), www.billboard.com/music/pop/taylor-swift-solo-songwriter-list (providing the songs Swift has solo-credit on, dating back to 2006, and not including songs with co-writers or the October 2022 Midnights album).
[3] See Hannah Dailey, Here Are All of Taylor Swift’s Acting Roles, From ‘Amsterdam’ to ‘Valentine’s Day,’ Billboard (Oct. 12, 2022), www.billboard.com/lists/taylor-swift-acting-roles/ (detailing cameo appearances across Swift’s career, including her voiceover role as Audrey in the animated film The Lorax).
[4] See Brent Lang, Taylor Swift Making Feature Directing Debut for Searchlight Pictures, Variety (Dec. 9, 2022), variety.com/2022/film/news/taylor-swift-feature-directing-debut-searchlight-pictures (stating Swift will be directing a feature-length film with Searchlight with an original script she wrote). Swift also wrote and directed All Too Well: The Short Film, which earned her a Best Direction award at the 2022 MTV VMAs. Id.
[5] Mehera Bonner, Every Wild Fact About Taylor Swift’s Cats: Olivia Benson, Meredith Grey, and Benjamin Button, Cosmopolitan (Oct. 4, 2022), www.cosmopolitan.com/entertainment/celebs/a35885248/taylor-swift-cats/. Much like their famous mom, the three cats have an avid fan base and Olivia is reportedly worth $97 million. Id.
[6] See Live Nation Entertainment Reports Third Quarter 2022, Live Nation Ent. (Nov. 3, 2022), www.livenationentertainment.com/2022/11/live-nation-entertainment-reports-third-quarter-2022-results/. Live Nation Entertainment is the parent company of Ticketmaster, which recently saw its “highest gross transaction value quarter ever” with $6.7 billion of fee-generating sales of 71 million tickets in this quarter. Id. Live Nation Entertainment also includes Live Nation Concerts and Live Nation Media & Sponsorship. Id.
[7] This is a colloquial term to refer to fans of Taylor Swift. Swiftie, Urban Dictionary. It is also a registered Trademark owned by Taylor Swift’s rights management company. Swifties, Registration No. 6,646,529.
[8] Karli Bendlin, Taylor Swift’s Eras Tour: A Timeline of the Ticketmaster Fiasco, People (Dec. 16, 2022), people.com/music/taylor-swift-eras-tour-ticketmaster-timeline/.
[9] See Eric Frankenberg, Taylor Swift’s Reputation Stadium Tour Breaks Record for Highest Grossing U.S. Tour, Billboard (Nov. 30, 2018), www.billboard.com/pro/taylor-swift-reputation-stadium-tour-breaks-record-highest-grossing-us-tour/ (noting that the 2018 tour broke the record for highest-grossing U.S. tour since 1990 when Billboard began tracking touring data).
[10] See Raisa Bruner, Here’s Why Taylor Swift is Re-Releasing Her Old Albums, TIME (Mar. 25, 2021), www.time.com/5949979/why-taylor-swift-is-rerecording-old-albums/. After Swift’s previous record label sold her masters to a third party, Swift decided to “override these archival works with these news versions” that she will own outright. Id.
[11] Bendlin, supra note 8.
[12] Everything You Need to Know about Ticketmaster Verified Fan, Ticketmaster, blog.ticketmaster.com/verifiedfan-faq/ (last accessed Dec. 17, 2022) (describing the Verified Fan program that is designed to create a “safe and reliable ticket-buying experience” but noting not all who are verified will get an access code that is needed to enter the ticket sale). The program aims to limit the ability of ticket bots to scoop up tickets and is used where ticket demand is expected to be extremely high. Id.
[13] Bendlin, supra note 8.
[14] Id.
[15] Id.
[16] Id.
[17] Ticketmaster (@Ticketmaster), Twitter (Nov. 15, 2022, 12:05 PM), twitter.com/Ticketmaster/status/1592579481449168898.
[18] Taylor Swift | The Eras Tour Onsale Explained, Ticketmaster, www.business.ticketmaster.com/business-solutions/taylor-swift-the-eras-tour-onsale-explained/ (last accessed Dec. 17, 2022) (hereinafter Ticketmaster Statement).
[19] Id.
[20] Bendlin, supra note 8.
[21] Id.
[22] Tatum Hunter, Angry Taylor Swift Fans Rail About Ticketmaster Glitches, Wash. Post (Nov. 15, 2022), www.washingtonpost.com/technology/2022/11/15/taylor-swift-ticketmaster/.
[23] Id.
[24] Bendlin, supra note 8.
[25] Ticketmaster (@Ticketmaster), Twitter (Nov. 17, 2022, 2:00 PM), twitter.com/Ticketmaster/status/1593333211769106433.
[26] See Ticketmaster Statement, supra note 18 (explaining there were 3.5 billion ticket requests for the 47 shows Ticketmaster was responsible for and that over 2 million tickets were sold in the pre-sale). Id. The statement also predicted that, based on traffic volume, over 900 stadium shows would be necessary to meet the demand. Id.
[27] Chris Willman & EJ Panaligan, Taylor Swift Says Ticketmaster Fiasco ‘Pisses Me Off’: ‘It’s Excruciating for Me to Just Watch Mistakes Happen,’ Variety (Nov. 18, 2022), www.variety.com/2022/music/news/taylor-swift-addresses-eras-tour-ticketmaster-fiasco (stating she would not make excuses because “we asked them, multiple times, if they could handle this kind of demand and were assured they could.”).
[28] Alexandria Ocasio-Cortez (@AOC), Twitter (Nov. 15, 2022, 12:35 PM), twitter.com/AOC/status/1592587226801934336. The New York-based U.S. Representative stated “Ticketmaster is a monopoly. . .they need to be reigned in.”).
[29] Kayleigh Roberts, Swifties With Disabilities Were Competing for 0.005% of Eras Tours Seats. Somehow Ticketmaster Made It Worse, Cosmopolitan (Dec. 15, 2022), www.cosmopolitan.com/entertainment/celebs/a42084049/taylor-swift-eras-tour-ada-seating-failures/. Ticketmaster guidelines state that those who abuse ADA-accessible seats will have their order cancelled but this repercussion is rarely enforced. Id.
[30] Id. While the ADA requires a certain number of ADA accessible seats based on venue capacity, there is little transparency on how venues implement this policy or how Ticketmaster verifies purchasers of ADA-accessible seats. Id.
[31] David McCabe & Ben Sisario, Justice Dept. Is Said to Investigate Ticketmaster’s Parent Company, N.Y. Times (Nov. 18, 2022), www.nytimes.com/2022/11/18/technology/live-nation-ticketmaster-investigation-taylor-swift.html (sharing that even prior to the botched pre-sale, Department staff have recently contacted music venues and others in the ticket market to investigate the entity’s practices and role within the industry).
[32] Id.
[33] Dave Brooks, Taylor Swift’s Eras Tour on Track to Sell $590 Million in Tickets. Here’s Where That Money Goes, Billboard (Dec. 16, 2022), www.billboard.com/pro/taylor-swift-eras-tour-ticket-sales-who-gets-paid/ (predicting the tour will earn $591 million in sales from the U.S. leg alone, which would set Swift as the highest-grossing female touring artist of all time).
[34] McCabe & Sisario, supra note 31.
[35] Nicole Tabak, A Group of Taylor Swift Fans Who Are Also Lawyers Is Organizing to Take on Ticketmaster, Bus. Insider (Nov. 21, 2022), www.businessinsider.com/taylor-swift-lawyer-fans-are-organizing-against-ticketmaster-mergers-2022-11.
[36] See Erin McCullough, TN AG Jonathan Skrmetti Looks Into Ticketmaster Over Taylor Swift Presale Debacle, WKRN (Nov. 16, 2022), www.wkrn.com/news/tennessee-news/tn-ag-jonathan-skrmetti-launches-investigation-into-ticketmaster-over-taylor-swift-presale-debacle/. See also Steffi Cao, Several Attorneys General Are Looking Into The Taylor Swift Ticketmaster Fiasco, Buzzfeed News (Nov. 19, 2022), www.wkrn.com/news/tennessee-news/tn-ag-jonathan-skrmetti-launches-investigation-into-ticketmaster-over-taylor-swift-presale-debacle/ (listing various State Attorney Generals who initiated investigations into the company and encouraged constituents to report related complaints).
[37] See Diane Bartz, U.S. Senator Plans Ticketmaster Hearing this Year After Taylor Swift Sale Woes, Reuters (Nov. 18, 2022), www.reuters.com/world/us/us-senator-plans-ticketmaster-hearing-this-year-2022-11-18/ (stating Senator Amy Klobuchar, chair of the Senate antitrust panel, plans to hold a hearing on Ticketmaster in the wake of the ticket sale issues, but no date has been set yet).
[38] See Monopolization Defined, F.T.C. Guide to Antitrust Laws, www.ftc.gov/advice-guidance/competition-guidance/guide-antitrust-laws/single-firm-conduct/monopolization-defined (last visited Dec. 17, 2022) (defining a monopoly based upon market power, exclusionary conduct, and business justification).
[39] Sherman Antitrust Act, 15 U.S.C. §§ 1-38 (2022).
[40] Sherman Act, ch. 647, 26 Stat. 209 (1890) (codified as amended at 15 U.S.C. §§ 1-38 (2022).
[41] 15 U.S.C. §§ 1-2 (2022) (defining the illegality of trusts and monopolies and setting forth a fine of $100,000,000 or 10 years imprisonment for corporations found in violation and $1,000,000 if an individual).
[42] History.com Editors, Gilded Age, Hist., www.history.com/topics/19th-century/gilded-age (last accessed Dec. 17, 2022) (providing a historical overview of the prosperous period and the income inequality that led to the rise of labor unions, railroad strikes, and eventual end of the period).
[43] Id. The Transcontinental Railroad was completed in 1869, connecting the east and west coast in a way never achieved before. Id.
[44] History.com Editors, Cornelius Vanderbilt, Hist., www.history.com/topics/19th-century/cornelius-vanderbilt (last updated Mar. 26, 2020). Vanderbilt was one of the three railroad tycoons involved in the Erie Railroad War of 1868 where the tycoons sought to control the Erie Railroad. Id.
[45] See Gilded Age, supra note 42. Other industries controlled by robber barons included oil, timber, sugar, liquor, meatpacking, mining, steel, tobacco, and textiles. Id.
[46] Id. Union busting was one method of control used by these entrepreneurs. Id. Child labor was also exploited with many parents accompanying their children “to a sweatshop each morning where they faced a 12-hour (or longer) workday.” Id.
[47] Id. It was well-known these entrepreneurs would accumulate wealth through acquisition of smaller businesses, political intimidation, and even violence to achieve their ends. Id.
[48] Patrick J. Kiger, How Robber Barons Flaunted Their Money During the Gilded Age, History (Jan. 24, 2022), www.history.com/news/robber-barons-gilded-age-wealth.
[49] Gabrielle Fox, “Pull Yourself Up By Your Bootstraps”: An American Mythology, Leading Women of Tomorrow (Mar. 1, 2020), www.leadingwomenoftomorrow.com/blogposts/2020/3/1/pull-yourself-up-by-your-bootstraps-an-american-mythology (detailing how this mentality exists in a vacuum and does not consider the effects of systematic oppression).
[50] See, e.g., Jacob Riis, Biography (Jan. 15, 2015), www.biography.com/writer/jacob-riis (detailing the work of photographer Jacob Riis whose book, How The Other Half Lives, unflinchingly depicted the reality of New York’s tenement slums, where many of the elite’s underpaid workers lived, and served as a foundation to further social reform in both living and labor conditions).
[51] Standard Oil Established, Libr. Cong. Rsch. Guide, guides.loc.gov/this-month-in-business-history/january/standard-oil-established (last visited Dec. 17, 2022).
[52] Biography: John D. Rockefeller, Senior, PBS, www.pbs.org/wgbh/americanexperience/features/rockefellers-john/ (last visited Dec. 17, 2022). Born in 1839, Rockefeller did embody the American ideal of meritocracy. Id. He began working and saving money at the age of 12, started his first business at 19, and entered oil refining in 1862. Id. He still tops the list as the wealthiest American in history. Michael B. Sauter, Where do Jeff Bezos, Warren Buffett, and Bill Gates Rank Among All-Time Richest Americans?, 24/7 Wall Street (Apr. 16, 2019), www.usatoday.com/story/money/2019/04/16/30-richest-americans-of-all-time/ (figures used were adjusted for inflation).
[53] Standard Oil Established, supra note 51.
[54] Id. Rockefeller offered “fair market price” to those losing money even though the refineries were losing money because of Standard Oil’s monopoly. Id. Through acquisition and other business practices, Rockefeller “bought out, shut down, or bankrupted 22 of his 26 Cleveland competitors” within the first three months of 1872. Id.
[55] Id.
[56] Id. But see Andy Piascik, Ida Tarbell: The Woman Who Took On Standard Oil, Conn. Hist. (Jan. 6, 2022), www.connecticuthistory.org/ida-tarbell-the-woman-who-took-on-standard-oil/ (discussing the work of journalist Ida Tarbell who wrote The History of the Standard Oil Company and documented the aggressive techniques used to “outmaneuver and, where necessary, roll over whoever got in its way.”). Her work is a major reason the Supreme Court moved in 1911 to deem Standard Oil a monopoly in violation of the Sherman Antitrust Act. Id.
[57] See Gilded Age, supra note 42. An example of what could happen is seen in the failure of the Philadelphia and Reading Railroad and National Cordage Company in 1893. Id. The result was the Panic of 1893, which left millions homeless and unemployed. Id. The collapse of the company disrupted American lives and economy because they were two of the largest employers in the nation. Panic of 1893, Oh. Hist. Cent., www.ohiohistorycentral.org/w/Panic_of_1893 (last visited Dec. 17, 2022).
[58] See Competition Matters: The Effects of Monopolies Are No Laughing Matter, Oh. Att’y Gen. (Oct. 26, 2022), www.ohioattorneygeneral.gov/Media/Newsletters/Competition-Matters/October-2020/The-Effects-of-Monopolies-are-No-Laughing-Matter (cautioning that, in addition to raising prices, monopolists can coerce consumers and suppliers not to do business with competitors, withdraw from less profitable geographic areas and limit consumer access, produce inferior products knowing there are no alternative options, limit production to drive up prices, and experience limited incentive to improve services or quality without competition).
[59] Standard Oil Established, supra note 51.
[60] Akshay Jagtap, et al., The Antitrust Legacy of Standard Oil in Today’s World, The Way Ahead (Nov. 1, 2021), www.jpt.spe.org/twa/the-antitrust-legacy-of-standard-oil-in-todays-world.
[61] See David Segal, Calling Almost Everyone’s Tune, N.Y. Times (Apr. 24, 2010), www.nytimes.com/2010/04/25/business/25ticket.html (detailing that the merger, while approved, could have unseen effects where the behemoth could intimidate venue owners into only using Ticketmaster and the control the company would have in setting ticket fees).
[62] Id.
[63] Id.
[64] Id.
[65] Id.
[66] See generally Biz at Live Nation, Live Nation Ent., www.livenationentertainment.com/about/ (last accessed Dec. 17, 2022). For a complete list of Live Nation venues, see Live Nation Venues, Live Nation, www.livenation.com/venues (last accessed Dec. 17, 2022).
[67] See Ben Fischer & Bret McCormick, NFL Expected to Extend Ticketmaster Deal Through ’26, Sports Bus. J. (Mar. 25, 2022), www.sportsbusinessjournal.com/Daily/Issues/2022/03/25/Leagues-and-Governing-Bodies/NFL-Ticketmaster.aspx (describing how Ticketmaster operates the league’s NFL Ticket Exchange and noting 29 of the 32 NFL teams use Ticketmaster as their primary partner).
[68] Ticketmaster, Live Nation, www.livenation.com/ticketmaster/ (last accessed Dec. 17, 2022) (describing Ticket Exchange by Ticketmaster, the resale market controlled by Live Nation, as well as Ticketmaster’s portfolio, which includes TicketWeb, Universe, IOMEDIA, Elevate, and Front Gate Tickets).
[69] Eric Boehlert, Pearl Jam: Taking on Ticketmaster, Rolling Stone (Dec. 28, 1995), www.rollingstone.com/music/music-news/pearl-jam-taking-on-ticketmaster-67440/.
[70] Krista Brown, Better Than Revenge: Swifties Help Expose Ticketmaster’s Monopoly, Rolling Stone (Nov. 23, 2022), www.rollingstone.com/music/music-features/taylor-swift-ticketmaster-live-nation-monopoly-antitrust-commentary
[71] See Monopolization Defined, supra note 38 (defining market power as one of the elements of a monopoly).
[72] Dept. of Just., Justice Department Requires Ticketmaster Entertainment Inc. to Make Significant Changes to Its Merger with Live Nation Inc., Just. News (Jan. 25, 2010), www.justice.gov/opa/pr/justice-department-requires-ticketmaster-entertainment-inc-make-significant-changes-its.
[73] Id.
[74] See Monopolization Defined, supra note 38 (describing exclusionary conduct as another element of a monopoly).
[75] See Winston Cho, Live Nation Accused of Shutting Out Venues That Don’t Use Ticketmaster, Hollywood Rep. (Jan. 5, 2022), www.hollywoodreporter.com/business/business-news/live-nation-ticketmaster-class-action (discussing a recent lawsuit alleging threats to withhold shows from venues if Ticketmaster is not selected as the ticketing provider).
[76] Ben Sisario & Graham Bowley, Live Nation Rules Music Ticketing, Some Say With Threats, N.Y. Times (Apr. 1, 2018), www.nytimes.com/2018/04/01/arts/music/live-nation-ticketmaster.html.
[77] See Competition Matters, supra note 58.
[78] See Monopolization Defined, supra note 38 (stating that businesses can demonstrate a legitimate justification for their control if their success can be shown by business acumen, historic accident, superior product, or other legitimate reasons for lack of competition).
[79] A Statement from Live Nation Entertainment, Live Nation Ent. (Nov. 19, 2022), www.livenationentertainment.com/2022/11/a-statement-from-live-nation-entertainment-2/ (hereinafter LNE Statement).
[80] Standard Oil Established, supra note 51.
[81] Id. The statement recognized competitors in the secondary (or re-sale) market, but not the primary. Id.
[82] Daniela Avila, Taylor Swift Fans Planning to Sue Ticketmaster After Eras Tour Ticket Controversy: Report, People (Dec. 5, 2022), www.people.com/music/taylor-swift-fans-plan-to-sue-ticketmaster/.
[83] See Vigilante Legal, Vigilante Legal, www.vigilantelegal.org (last visited Dec. 17, 2022).
[84] E-mail from Blake Barnett, et. al, representatives of Vigilante Legal LLC, to F.T.C. (Dec. 1, 2022), available at www.vigilantelegal.org/wp-content/uploads/2022/12/FTC-Complaint-Full-w-Exhibits-Watermark.pdf.
[85] Id.
[86] Ticketmaster controls primary ticketing, which would be first point-of-sale tickets. See LNE Statement, supra note 72. Their competitors are largely secondary ticketing services, which are susceptible to inflated pricing because the individual re-sellers set their prices and as such, often sell far above face-value. See Byard Duncan, “How Is This Legal?” Legions of Fans Say the Secondary Ticket Market is Rigged Against Them, Reveal News (Mar. 8, 2021), www.revealnews.org/article/how-is-this-legal/.
[87] Dept. of Just., Justice Department Will Move to Significantly Modify and Extend Consent Decree with Live Nation/Ticketmaster, Just. News (Dec. 19, 2019), www.justice.gov/opa/pr/justice-department-will-move-significantly-modify-and-extend-consent-decree-live (modifying the terms of a 2010 agreement that sought to curb antitrust violations when an investigation showed “Live Nation repeatedly and over the course of several years engaged in conduct that, in the Department’s view, violated the Final Judgement.”).
[88] See, e.g., Moises Mendez II, Why Everyone’s Mad at Ticketmaster Right Now, Time (Aug. 18, 2022), www. time.com/6207167/ticketmaster-ticket-prices-expensive-backlash/ (detailing that the average ticket price have “more than tripled since the mid-‘90s” in part due to complex productions in arena tours but also from fees that “can be as high as 78% of the ticket price.”). These fees are ultimately divided between promoters, venues, artists and Ticketmaster. Id. Logically, if LNE controls the promoter, venue, and Ticketmaster in a tour, it would follow that a majority of the ticket fee benefits their bottom line.
[89] Taylor Swift, Change (Taylor’s Version) (Republic Records 2021).