Transcript of Conference Call with Jonathan Kanter on The Ticketmaster–Live Nation Lawsuit

On February 27, The Capitol Forum held a conference call with Jonathan Kanter,  former U.S. Assistant Attorney General and Distinguished Professor of Policy at Carnegie Mellon University and Washington University, to discuss the evolving antitrust case against Live Nation–Ticketmaster following the court’s recent summary judgment ruling, the viability of a structural breakup, and the broader implications for competition enforcement in live entertainment and tech markets. As the case heads toward trial, questions remain about tying claims, monopolization allegations, potential remedies, and the role of states and federal enforcers.

TEDDY DOWNEY: Hello everyone and welcome. I’m Teddy Downey, Executive Editor here at The Capitol Forum. Today, very pleased to be joined by the great Jonathan Kanter, former U.S. Assistant Attorney General and Distinguished Professor of Policy at Carnegie Mellon University and Washington University. He needs no further introduction. We’re going to be talking about Ticketmaster and Live Nation, a few other things. Jonathan brought this case. So, I can’t think of a bigger expert. Jonathan, thanks so much for doing this today.

JONATHAN KANTER: Oh, always great to be back as your podcast intern, Teddy.

TEDDY DOWNEY: I know, it’s been ‑‑ I’ve missed you. I’ve missed you. It’s always fun to have you on. And co‑host, I would prefer co-host or something, but intern is definitely more.

JONATHAN KANTER: I know my place, Teddy. I know my place.

TEDDY DOWNEY: So, let’s kick things off here. Ticketmaster, Live Nation, we’re headed to trial next week. I would love to get your reaction to what’s happened so far. You brought this case. You were telling a specific kind of story. What do you think DOJ has done in terms of shifting strategy or what have you? Or what do you think are some of the strengths and weaknesses about how DOJ has gone about getting to this point?

JONATHAN KANTER: Sure. Yeah. Let me also just kind of go up to a high altitude here. Because obviously, at the DOJ, we filed the case. It’s very difficult to hand off cases to a new administration. And so, I’ve been out in the wilderness doing my thing, teaching, enjoying life and keeping an eye on how things are going, but a bit removed now. And I love the team who’s litigating it. A lot of the folks on it were there when I was there and have great affection for them and really do wish them the best. And there’s a tremendous amount of talent.

I think the case has morphed a bit just since we filed it. When we filed the case, we told a very kind of comprehensive story about a company that had accumulated and maintained its power over the course of really over a decade. And how that power exists at various different levels in the supply chain and how it used that power in one area to reinforce power in another, and then power in another area to reinforce power in another. And how it had this cumulative effect, which if you look at the face of the complaint was based on evidence from the company’s own filings, including SEC filings. It was about a flywheel. It was about the interaction between and among all of these different services, whether the promotion, the arena, the ticketing, and so forth.

And so, that story, in my view, lends itself to Section 2, modern monopolization enforcement. And what I mean by that is for a long time in antitrust, we got into very narrow boxes, exclusive dealing, tying, raising rivals’ costs, things that are very rigid and sometimes accurate.

But when we were at DOJ, we took a broader look at Section 2. And what you appreciate is that courts explain that ‑‑ unlike a Section 1 case, like an agreement in restraint of trade ‑‑ monopolization can come in so many different forms. And courts have gotten a lot better in recent years, like Duke Energy, AdTech, and others, at looking at the collective behavior of a company and understanding that the whole is often greater than the sum of its parts. And the context of how a company behaves in a continuous way across lots of different segments of the market has a reinforcing and exclusionary effect that is greater than any one act standing on its own.

And so, when we filed this case, it was filed very much in that spirit. I think now it feels a little bit more like a case that’s been kind of whittled down to a number of very specific theories that I think kind of lose the overall story.

TEDDY DOWNEY: And the importance of winning in court, in a lot of these antitrust cases, is really telling a compelling story. So, do you think, based on how that strategy has changed, that Live Nation immediately seized on the promotions getting kicked out, getting dismissed, the claims around promotions, and saying, hey, a breakup is off the table? We had other experts say, look, just Live Nation’s history of monopoly and the remaining monopolization claims — and just some of the, I think, sort of compelling evidence around the amphitheater stuff ‑‑ keeps a breakup on the table and actually makes it still pretty suitable, just given, again, the sort of recidivism of the company. But what’s your take on, is it harder? Let’s assume that ‑‑ well, actually, I’ll just leave it open. Do you think this is still a winnable case? And do you think a breakup is still on the table?

JONATHAN KANTER: I mean, yeah, of course, it’s a winnable case. I mean, that’s the nature of its surviving summary judgment. The court said it’s a triable, winnable case. And that’s going to be up to the finder of fact here to make that determination.

But the case is still strong, and the story is still there to be told. And so, one kind of perhaps addendum to my previous comment is that even if some of that story has been whittled away, there’s plenty of opportunity to still tell it. And when you get into trial, it’s a storytelling exercise that sometimes is a bit different than the kind of more formulaic summary judgment in legal analysis.

So, there’s a story to be told. And then there’s a context to tell that story, a legal context to tell that story. So, there’s plenty of opportunity. They’re a talented team. I genuinely hope, and I’m rooting for them to perform well in court so they can fulfill their obligations and shine like they have in other cases.

So, there’s a lot that can still happen here. In terms of remedies, I mean, it’s still a big story. While I think some of it has fallen away, it still does hinge on the interaction between and among ticketing and promotions, ticketing and theaters and amphitheaters, and focuses on major concert venues.

So, there’s still a big story to be told. The interactions among the various different segments of the market are there, even if I think it has gotten a little bit too rigid in thinking about each market in too much of a narrow sense and a little bit too rigid in defining the conduct in these narrow boxes, rather than contextualizing it as kind of broad Section 2 exclusionary behavior.

Let me give you an example of that. So, the case here talks about tying and exclusive dealing. This was an issue back in the U.S. v. Microsoft case. There were tying and exclusive dealing claims in that case that failed. But the same conduct, the same kind of exclusionary contracts, the same co-mingling of code or tying like behavior, were sufficient to support a Section 2 claim. Because what the court said is that when you’re bringing a monopolization case, you don’t need to show separate markets for the purposes of tying. You don’t need to have the requisite foreclosure for exclusive dealing case. What you’re looking at is a different kind of exclusionary effect.

And so, one of the things I think that’s important in this case is to make sure you don’t lose sight of this legal framework, that you don’t need rigid tying and exclusive dealing to have conduct that might read like similar to tying exclusive dealing to be illegal for the purposes of Section 2.

TEDDY DOWNEY: How important is it to tell more of a holistic story given that it’s a jury trial? Like I can imagine you’re in front of a judge. In some ways, it’s easier to just say, hey, here’s some formulaic stuff. But you’re in front of a jury. How important is that? In terms of us watching it, how should we assess if DOJ is doing a good job in terms of making these connections clear for a jury?

JONATHAN KANTER: I think it’s exactly that. I think the discipline of having a jury in the room, even if it’s a hybrid case, is about storytelling. It’s about right and wrong. It’s about a just outcome. And I’ve always been a big fan of trying to inject jury trials into civil government antitrust. I think antitrust shouldn’t be different than other kinds of law.

We try lots of complicated cases in front of juries. And that’s our system. And by allowing juries to make decisions, it’s a discipline that forces you to distill a case down to its core elements, to make it digestible, to make it accessible, to make it about right and wrong, and to move away from what I have lamented in the past as becoming an antitrust framework that is too complicated, impenetrable, and often designed for an insular few who treat it like a math exercise when it really should be anything but that.

Antitrust laws were developed over 100 years ago to address power and to address abuses of that power and accumulations of that power. And I think it’s very important to make sure that we don’t lose sight of that objective and that when we bring a case to our fellow Americans, we’re doing it in a way that really boils it down to the essence of what the antitrust laws were designed to address.

TEDDY DOWNEY: What do you think about in terms of the types of witnesses that are going to be compelling in this type of case? A lot of people have brought up Simon & Schuster in terms of getting those authors there to say how they are harmed. Are we going to see something like that with these musicians and competitive venue owners and managers? What do you think about the witnesses?

JONATHAN KANTER: The good news is I have the benefit of not knowing because I’m not there anymore. So, I’ll be watching with interest along with everyone else. But your observation is important. Again, going back to sort of the premise that we were just discussing about antitrust really needing to be accessible in order to fulfill its obligations to the public, I think we got into a world where antitrust became battles of the experts and courts did not react particularly well to that in either direction.

And so, the kind of antitrust that we infused when we brought our cases at DOJ, and I think turned out to be quite successful, is really engaging in the storytelling and using witnesses, people who are kind of who are living and breathing these issues in an authentic way and letting them speak to it. And then using experts to help put that in context when necessary and help explain why the expertise they have can help understand how something might work or help explain why something that might seem obvious is obvious and consistent with whatever numbers or analysis might be done, really to reinforce a case.

And so, I think what I’d be watching for is a case that is really very witness heavy, storytelling heavy, and relies on those kind of first person accounts for what happened, whether something was good or bad, harmful or not, exclusionary or not, bullying, those kinds of things. And then the expert’s really there to help reinforce that message in a more academic way, but really leading with the storytelling and the first party witnesses first.

TEDDY DOWNEY: One thing that we’ve always been forced to do in a lot of these cases is evaluate the judge, right? And a judge can be ‑‑ a lot of judges are pretty deferential to business executives. How big of a deal is it that you don’t really worry about that with a jury? I mean, I guess you could have a number of jurors who are deferential to business executives.

JONATHAN KANTER: Yeah.

TEDDY DOWNEY: How big of an advantage is it for DOJ and the states that they can talk to people and actually a company that’s ‑‑ is it fair to say it’s not very well liked? That most people have a pretty good experience of super high ticket prices? I don’t know. But does that create, does that put Live Nation just necessarily on its heels here sort of as a bit of an underdog?

JONATHAN KANTER: Yeah, there’s a phrase among lawyers, which is jury appeal. And in a case that’s jury appeal, it’s one that kind of is very accessible to people where right and wrong is on display. And perhaps people’s own life experiences, while not creating bias, gives them a frame of reference to understand whether they think behavior is good or bad. And so, I think it’s widely recognized that when litigated properly, this case has a lot of jury appeal.

And I think judges like it, for what it’s worth. I think judges, most of them, prefer juries. They like the idea of being there to preside over a case, help understand questions of law, and then let your jurors untangle questions of fact. And I think the lack of that in antitrust has perhaps, much to the frustration of many judges, put too much pressure, too much responsibility, on judges when really the process is for the judge to help, again, address questions of law, and then to have juries and others address questions of fact.

Now, this is a bit of a hybrid. There’s some questions about what will be up to the judge, what will be up to the jury. But just having that jury in the room makes a big difference.

TEDDY DOWNEY: And in terms of that, I mean, I think the expectation is that the jury will decide on liability, and then the judge will decide on remedy. Is that typically, how it goes?

JONATHAN KANTER: There’s no typical, right? I don’t know that we’ve had many experiences. And one of the things when I was there, when I started, is we were going to really try to infuse jury trials into civil antitrust, which is something we hadn’t seen, perhaps in 100 years.

And so, it’s pretty exciting, actually. And I think there’s some technicalities that I won’t bore you with in terms of what questions should be decided by a jury and what questions should be decided by a judge. This was obviously litigated in the AdTech case. And ultimately, the court decided to try it itself. But I think it’s kind of fun. And so, from an observer’s perspective, I think it’s pretty cool that we have a jury in the room for a government antitrust case, a civil government antitrust case.

TEDDY DOWNEY: I know a lot of people are so focused on, oh, is there going to be a breakup? I want to stay on that for a minute because it is interesting. There’s just such a history of Live Nation having dominance, having market power, and then these behavioral constraints not working. Does it make sense ‑‑ do you think that materially affects the ability for a judge to put more behavioral constraints to solve any problems that they might find at the liability stage?

JONATHAN KANTER: If they get past liability and get to remedies, then I think there is a compelling basis for a court to look at the history here and say what has worked and what hasn’t. So, I think that will work in favor of the government if they take a swing for a bolder remedy.

TEDDY DOWNEY: Even if the government wins on liability, how big of a deal is that? We’ve seen in these Google cases a lot of follow-on litigation from companies who’ve been harmed by Google over the years, worth billions and billions of dollars, these big, big cases. And now they don’t have to prove liability. They sort of just skip that part, go right to the damages. What do you think that means in this situation with Live Nation? You lose on liability. Maybe you don’t get broken up. But what are you looking at in terms of follow-on litigation here?

JONATHAN KANTER: Yeah. I mean, listen, I think there’s a short game and a long game when it comes to a lot of these big government cases. And so, I was very critical of the remedy in the Google search case. I thought it was inadequate. But I still believe that it was a good thing that the government brought that case and a good thing the government won that case. It moves the law in a better direction. It creates some accountability, even if it’s not sufficient. It leads to private attorneys general in the context of these follow-on cases.

And these things don’t move quickly. Antitrust, that is. Antitrust is not a silver bullet that can have one case fix every problem. It has to be a cumulative effort, especially when you’re trying to undo 40 or 50 years of inaction. And so, it’s going to take a series of steps to restore that rule of law and make it applicable. And that’s not going to happen over one case.

And it’s not going to be a linear progression. I mean, there will be setbacks along the way. But I think if you look at where we are today relative to where we were 15 years ago, we’re in a very different place. We have litigated cases and wins against Big Tech companies. There are a whole string of motions to dismiss that won.

So, now you have all these legal opinions. We have a bunch of circuits that have adopted cases that limit Trinco, Chase Manufacturing, and Viamedia, and Duke Energy, and AdTech. You have a path now for how to win a trial against some of the big companies. You have pending cases by the government against Ticketmaster here, and Visa, and Agri Stats just succeeded in winning the summary judgment.

Things are moving. And when you’re impatient and when you’re frustrated with 30 or 40 years of perhaps stagnation, it could feel slow. And I share that frustration. And I’ve been out there for my fair share talking about that.

But at the same time, I do think it’s important to take a step back and recognize that publishers now have a template to fight for their monetization. And publishers matter because the news industry is critical to our democracy. And so, things, again, aren’t working perfectly, but they’re working. And I think that’s a good and healthy thing.

TEDDY DOWNEY: We’ve got a couple of listener questions. So, I want to take a couple of listener questions on Live Nation. And then maybe after that, we can talk just a little bit more generally about antitrust right now and DOJ and FCC.

So, first question here, any additional follow-on competition issues on exclusion, such as Live Nation forcing venues to only carry Live Nation approved brand? Do you want to talk about that? I’m not exactly sure.

JONATHAN KANTER: I don’t know how much I can weigh in on that, other than to say that these cases ‑‑ it’s interesting because they get litigated for a long period of time, but they’re really confined by a few things. One is what’s in the complaint initially, and then what goes to trial from the summary judgment opinion. And so, I think that will dictate what the theories of harm are, and what evidence comes in will have to be in furtherance of those theories.

But I think to your point, Teddy, which is when the government brings a case, and if it’s successful, it can lead to lots of other flavors of a case from private parties and other kinds of accountability. And remedies can also be comprehensive, right? Because remedy in an antitrust case isn’t just saying, whatever you did wrong in the past, you have to stop doing, done properly. Remedy in antitrust cases is supposed to be forward-looking. It’s supposed to address the power that was accumulated or maintained illegally as a result of the anti-competitive behavior.

And that gives courts a fair degree of discretion in terms of crafting a remedy that will actually be meaningful going forward. Sometimes courts do a good job. Sometimes they don’t. Sometimes the government asks for the right thing. Sometimes they don’t. We’ll have to see.

TEDDY DOWNEY: I’ve got another listener question here. You’ve been really clear that this case was brought for the benefit of artists and fans. In terms of remedies, though, StubHub and other resellers have been pushing for approaches to remedies that artist groups and independent venues really hate, that align with StubHub’s long‑standing policy goals of maximum extraction and take agency away from creators who want to keep prices low for fans. How should DOJ guard against bad remedy ideas?

JONATHAN KANTER: Yeah, listen, I think the DOJ should focus on remedies that help the public. And my sort of North Star, when I was at the Antitrust Division, and I think when I talk about antitrust is, what is the purpose of the antitrust law? The purpose of antitrust is to address power and to address accumulations of power that are harmful.

And I think the remedy, actually, if you sort of stick with that principle, you need to find a remedy that addresses the power and lets competition take hold. Then that’s a good North Star. There’s plenty of opportunity for courts to kind of wrestle with, and agencies to wrestle with, what might be unintended consequences from a remedy. And so, I think that has to get litigated. But the fact of the matter is we won’t know until we get to past liability. And so, that’s kind of what’s right in front of us now.

TEDDY DOWNEY: I have another observation that I’ve made that I’d love to bounce off of you. And then maybe we can talk about something besides liability for a little bit. I’ve noticed that states and municipalities are increasingly willing to ban speculative tickets, put additional regulations and curbs on the secondary market to kind of prevent the secondary market from just becoming a race to the bottom.

The FTC ‑‑ and kudos to them, since they sued Live Nation ‑‑ they sued over the secondary market, this kind of collusive stuff. And they implicated Live Nation in that sort of benefiting from bad practices in the secondary market. So, there’s kind of across the board, increasingly, states are willing to, and law enforcers are willing to, crack down on the secondary market.

My thinking is, well, if you look at StubHub and SeatGeek, certainly SeatGeek originally wanted to get into the primary market. They wanted to compete with Live Nation, but they couldn’t. I mean, Ticketmaster. And so, if you have this crowding out in the secondary market and this litigation, is there a world in which you could see actually a competitive environment in the ticketing industry? Like, can you envision it? Is it plausible at this point for you?

JONATHAN KANTER: It has to be, right? I guess let me say it this way, which is this market is really broken and there’s dissatisfaction at so many different levels. And to me, that’s kind of what this case is designed to start fixing. It may not fix all of the problems, but it feels like the dissatisfaction with these markets have been compounding, whether you’re an artist, a fan, a competitor, venue, it seems like everywhere.

And so, this case was really about going to the core of the power that is at the center of that. And then maybe if you can start fixing some of the core problems, you can start opening up avenues for innovation to deal with some of these secondary issues and ticketing issues, and other problems which have not been solved via market solutions. And at some point, if there’s a huge market failure, then you need to look more at regulation.

But I think that the first line of defense is saying, okay. Can we try to invite some competition in here to fix some of these problems and better satisfy the needs of the various different constituencies? And hopefully, if this case is successful, it can do that.

TEDDY DOWNEY: Okay. So, we have one last listener question here, but it gets us off the topic of Live Nation to some extent. In your farewell speech, you said, we need an open and candid conversation on how to distinguish between expertise and advocacy. How do you think that fight is going? And maybe you can just describe what you mean by that a little bit. And how have you seen that playing out?

JONATHAN KANTER: Yeah. I feel like we’re making progress. I feel like we’re part of progress in some respects, not in others. The fact of the matter is, antitrust became too insular and I think a little too captured by the antitrust beltway insider elite. And that was a problem.

I talked a lot about the reliance on “experts” who were really just advocates, meaning they’re paid a lot of money to make an argument. And we elevated that as expertise when it was advocacy. And I’ve always been very clear, there’s nothing wrong with advocacy. Advocacy is part of our system. But we have to distinguish between advocacy and expertise. And you can look through mountains of court decisions that were unfavorable on antitrust that cite law review articles or economic articles as if they’re neutral experts when they were actually by people who were paid by industry participants.

And so, that’s a lot of what I was talking about. I think we’ve made progress on that to some degree, but we have a very, very long way to go. And I think this is all about what I view as a probably decade-long, if not multi-decade long, effort to kind of bring antitrust back to its roots. And I hope we helped kickstart that process during my time at DOJ and our counterparts over at the FTC, but it’s going to take a while.

TEDDY DOWNEY: You, obviously, were at the DOJ. You had a boss there. You had to deal with upper management there. What do you see going on now? What do you think about the Trump administration’s antitrust enforcement, the role of lobbyists, that type of thing?

Obviously, we have that big HPE Tunney Act hearing, there have been rumors I said that DOJ might settle with Live Nation around lobbying from Mike Davis. What are your thoughts on what you’re seeing so far in the second Trump administration?

JONATHAN KANTER: Yeah. So, at our time at DOJ — and there were some criticisms, perhaps fairly so ‑‑ that we were so independent to a fault, even on policy issues sometimes between DOJ and the White House. But enforcement decisions we made on the merits distinct from politics as best we could. And it was a very distinct way of viewing enforcement policy.

This administration is not shy about taking a very different view. It has the picture of the President on the face of the Department of Justice now, and it views much more unitary executive style approach. And there’s a lot more, “deal making”. But that deal making at least would appear ‑‑ but who knows what’s happening ‑‑ to be kind of open-ended. Is it just designed to address competition issues or to use it as leverage to extract other kinds of concessions?

I think those are questions that are being asked and should be asked. And I think it would be unfortunate if antitrust is just used as a leverage point to get concessions that have nothing to do with corporate power. Antitrust was enacted by Congress because there was a belief that centralized corporate power in our economy is antithetical to our democracy and our freedom and our way of life. And it’s really important we get that right. It’s really important that antitrust laws be used to address those issues.

TEDDY DOWNEY: One other thing that’s really different from my experience so far is the Biden administration had an all of government approach to anti-monopoly and competition. You really haven’t seen that dealing with antitrust issues. Well, in some ways, a lot of it’s driven from the White House. But you don’t see, for example, the USTR and Commerce working with the FTC and DOJ to make sure that their tariffs are working. And so, you have these big tariffs, but you don’t have any crackdown on aluminum or steel. And as a result, you’re not making any more aluminum or steel. You’re just getting higher prices for the people who make things with aluminum and steel.

JONATHAN KANTER: Right.

TEDDY DOWNEY: And so, you have, I would call it – it feels incoherent to me. It feels counterproductive to me. And I can see the frustration from Jameson Greer, who will give speeches saying these two things need to go hand-in-hand, right? Antitrust and tariffs, antitrust and trade policy. And then you see very little follow through in terms of that happening. What’s your response to that? Why was it important to have an all of government approach, to have a dialogue among your different policymakers?

JONATHAN KANTER: So, for starters, governing’s hard. And to do it well in a large, massive organization like the U.S. government with tons of interdependencies requires a lot of coordination and effort. And so, even if your intentions are right, pulling it off is hard. And so, it’s not an easy thing to do, even when you want to do the right thing.

When you have incoherent ideology and shifting policy frameworks and very aggressive rollouts that perhaps are not well coordinated, you run into those challenges you’re discussing. And so, that doesn’t surprise me. Even when you try to do it in a perfectly coordinated and orchestrated way, you run into challenges. We certainly had our fair share. But I think there is ‑‑ it does feel incoherent. And I think some of that, though, is I think there is lack of ‑‑ there’s certainly not lack of uniformity among Democrats on competition issues and economic issues. And that was always a challenge when we were in government.

I think that those problems are even more jagged or more extreme in the current administration because you have folks who are genuinely populist. You have folks who are genuinely libertarian. And then you have folks who are genuinely transactional or opportunistic. And I think that combination is a kind of interesting cocktail.

TEDDY DOWNEY: I’ll leave you one last question. There’s this huge affordability agenda push. Like the issue for the midterms is affordability. What is the role of antitrust in terms of tackling affordability issues? Obviously, you’ve got the Democrats, we’ve got the Republicans. We’ve sort of seen the White House say here’s what my agenda is. But the Democrats really haven’t come out with one. How do you see antitrust informing and playing a role in helping an affordability agenda?

JONATHAN KANTER: Yeah, I mean, it’s the tip of the spear, right? Competition lowers prices. Competition is important for more than just prices. But I think you can’t have a competitive market and competitive prices and competitive opportunity and competitive wages and choice, and all the things that people want, whether you’re a worker, a consumer, an entrepreneur, or everything in between, without competition.

And so, I think what we are experiencing now in our society are the results of a lax antitrust policy for 40 years. And it’s not a switch, you can flip on and off at will, and just say, okay. All right, we were wrong, let’s flip the switch. And now we have a competitive economy. You want a competitive economy, you have to invest in it. You have to nurture it. And you have to enforce the law, the antitrust laws, in order to maintain it. And it is going to take us some time to get back there. But antitrust absolutely should be front and center in that agenda.

TEDDY DOWNEY: Well, Jonathan, this was an absolute pleasure. It’s so good to see you. I’m so happy to do this. I can’t wait to do it again the next time you are able to. This was ‑‑ I learned a ton. I always learn a ton from you. And thank you so much for doing this.

JONATHAN KANTER: Oh, it’s always my pleasure, Teddy. It’s great to be back.

TEDDY DOWNEY: And thanks to everyone for joining the call today. This concludes the call. Bye-bye.

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