IMP loses anti-trust lawsuit to Live Nation - will appeal

[Got Haggis?]

http://www.citypaper.com/blogs/the-news-hole/bcp-seth-hurwitz-speaks-on-court-loss-to-live-nation-vows-to-appeal-20150220,0,5130631.story

[sweetcell]

legal procedural drama is soooooo punk rawk!

[Julian, Bespoke SEXPERT]

HOT TAKE: The only winners here are the lawyers!

[challenged]

Opinion: https://www.wsgr.com/PDFs/livenation-0215.pdf

[Julian, Bespoke SEXPERT]

Opinion: https://www.wsgr.com/PDFs/livenation-0215.pdf

Here's your jump ahead to the "good stuff" for people who don't want to read it all:

ii. Individual instances of Live Nation trying to coerce artists.
Plaintiffs also cite several statements by artists, their managers, and their agents that
plaintiffs argue evidence coercion. The cited examples, however, are either too innocuous to
constitute coercion or are directly contradicted by the very same artist, manager, or agent.

First, plaintiffs cite an email from Live Nation?s Jason Garner as evidence that he
?coerced . . . the Counting Crows and Goo Goo Dolls . . . Santana and Ashlee Simpson . . . to
forego appearing at Merriweather.? (ECF No. 279 at p. 36). That email to fellow Live Nation
employee Ted Mankin, however, simply stated that Garner would ?try to help? sign those artists
to perform at Nissan instead of Merriweather, while asking Makin to do the same with ?Panic?
(presumably artist Panic! at the Disco). (ECF No. 118-1 at p. . That statement contains no
facial evidence of coercion, nor could a reasonable fact-finder infer coercion from Garner?s offer
to ?try to help.? It only states the obvious?Live Nation tries to book artists at its own venues.
Next, plaintiffs cite instances where artists on Live Nation national promotion tours felt
coerced by Live Nation to perform at Nissan. For example, plaintiffs cite two tours in 2006:
Nine Inch Nails and John Mayer. First, plaintiffs argue that Nine Inch Nails (and booking agent
Marc Geiger) ?yielded to [live Nation?s] conditioning? by performing at Nissan in 2006. (ECF
No. 279 at p. 36). Geiger?s own deposition, however, explicitly denies any ?force? or
?coercion,? or that Live Nation ?compelled . . . an artist to appear at Nissan over Merriweather.?
(ECF No. 287-14). Indeed, Nine Inch Nails agreed to play at Nissan only after Live Nation
added an additional $150,000 to its compensation under the national promotion deal. (ECF No.
280-34).15
 As for John Mayer, he performed on a national Live Nation tour (along with Sheryl
Crow) that provided him with 100% of net ticket sales (less expenses). (Garner Dep., ECF No.
136-35). That offer was ?contingent on Nissan and White River? (another Live Nation
amphitheater), which plaintiffs allege was coercive. Mayer?s agent (also Geiger), however,
denied that Live Nation coerced John Mayer into not performing at Merriweather in 2006. (ECF No. 287-14 at p. 40:22?41:7) (stating ?it?s not true?). Even if John Mayer initially wanted to
perform at Merriweather, the increased financial compensation offered by Live Nation (100% of
ticket sales, less expenses) is evidence of negotiation, not coercion. See id. at p. 41:18?20
(Geiger explaining a decision to play at Nissan over Merriweather as based on ?financial
incentives?).
Plaintiffs also claim that Live Nation ?coerced? the Jonas Brothers to forego an
appearance at Merriweather in August 2008. The Jonas Brothers had signed a national
promotion contract with Live Nation in 2007, but plaintiffs submitted an offer for the artist to
perform instead at Merriweather in August 2008. (ECF No. 287-6). The Jonas Brothers
declined, and ultimately appeared at First Mariner (now the Baltimore Arena)?not Nissan?for
$12,000 more in guaranteed compensation. (Compare id., with ECF No. 287-11). Plaintiffs
argue nonetheless that agent David Zedeck?s testimony raises a disputed material fact from
which a reasonable fact-finder could conclude that the Jonas Brothers wanted to perform at
Merriweather but were coerced by Live Nation. Zedeck does admit that he asked plaintiffs to
?hold? a date at Merriweather for a potential performance by the Jonas Brothers, but in the same
testimony also states that the Jonas Brothers never requested to perform at Merriweather. (ECF
No. 280-17 at p. 93:1?3). Instead of suggesting coercion, Zedeck?s testimony simply
demonstrates that he was negotiating and shopping around for venue options on behalf of the
Jonas Brothers. Plaintiffs have not cited any evidence that the Jonas Brothers were dissatisfied
with the outcome: performing at First Mariner for more money.
Finally, plaintiffs cite an email sent by Live Nation employee Perry Lavoisne in reference
to artist Sublime?s 2010 Summer Tour. (ECF No. 280-20). Lavoisne states that Sublime?s
agent/manager ?is in no position to tell us no. I will get it done or no tour offer,? the ?it?
referring to performing at Nissan for the band?s Baltimore-D.C. appearance. Id. In response,
Sublime declined Live Nation?s offer and the band performed at Pier Six Pavilion for the
Baltimore-D.C. date on July 18, 2010. (ECF No. 285-8). Not only was Sublime not on a Live
Nation national promotion tour?the alleged tying product in this case?the evidence only
indicates that Sublime was free to perform at Merriweather and chose not to. Although Lavoisne
may have (mistakenly) believed that Live Nation had leverage over Sublime, the evidence does
not demonstrate coercion in any form.
Overall, these individual instances of alleged unlawful behavior by Live Nation are not
facial evidence of coercion, and they do not permit a reasonable inference of coercion. The same
artists, managers, and agents who make comments interpreted by plaintiffs as indicia of coercion
often explicitly deny being coerced by Live Nation. Plaintiffs? cited evidence demonstrates
vigorous competition by Merriweather and Nissan in negotiating with artists to perform at their
respective venues. Courts have held that ?sales pressure . . . . strong persuasion, encouragement
or cajolery to the point of being obnoxious? are not unlawful. Unijax, Inc. v. Champion Int?l,
Inc., 683 F.2d 678, 684?85 (2d Cir. 1982). Negotiating is not tying.

[Julian, Bespoke SEXPERT]

Plaintiffs argue that in 2006 Live Nation coerced the band 311 to perform at Nissan
instead of Merriweather by threatening to eliminate performances at other Live Nation-owned
venues. The only evidence to support this argument is an email from the band?s manager (John
Harrington) to Seth Hurwitz in which Harrington stated that if the band switched from Nissan to
Merriweather its ?Virginia Beach date would go out the window.? (ECF No. 112-1 at p. 82). At
Harrington?s deposition, however, he stated that ?Live Nation has never used tactics that I would
consider coercive,? and further explained his email to Hurwitz as aimed at ?getting Seth off [his]
back? regarding whether the band would substitute Nissan for Merriweather. (ECF No. 287-16
at pp. 43:4?5, 44:4). Moreover, at the time of this email, 311 had already negotiated with Live
Nation to appear at Nissan as part of their tour, a fact that Hurwitz was aware of when he asked
311 to perform at Merriweather instead.

[azaghal1981]

Sublime?

Was that a hologram thing?

[hutch]

IMP's case seems shockingly thin given LN is the Evil Empire....

[azaghal1981]

You'd think it would be easier to find bands that would corroborate the strong-arm tactics accusations if said tactics were that big a problem.

[Got Haggis?]

or maybe said bands just like the extra money LN throws at them

[Julian, Bespoke SEXPERT]

maybe said bands just like the extra money LN throws at them

[sweetcell]

LN runs the concert industry in this country.  as rock and roll as it would be to rail against The Man, it would do bad things for your career (AKA paycheck).  so IMO it's not the extra money that is thrown to them, it's the desire to keep making any money in the future that is keeping them quiet.  they might not agree with the tactics, but it's the only game in town.