In re Live Concert Antitrust Litigation

Chimicles & Tikellis is a member of the executive committee for this multidistrict litigation titled In re Live Concert Antitrust Litigation, MDL 05-1745 alleging antitrust violations in the concert promotion and concert ticket market.   The MDL consists of 22 separate actions alleging antitrust violations in seventeen geographic markets in the United States.  The regions included have been dubbed the: Denver Region, Boston Region, Chicago Region, Southern California Region, New York Region, Southern Florida Region, Philadelphia Region, Northern California Region, Carolina Region, Atlanta Region, Ohio River Region, Houston Region, Wisconsin Region, District of Columbia Region, Arizona Region, and Seattle Region.

The complaints allege that Clear Channel Communications Inc., the largest radio broadcasting company in the country, through its subsidiaries, Clear Channel Broadcasting, Inc. and Live Nation, Inc. (f/k/a Clear Channel Entertainment), monopolized and attempted to monopolize regional markets for concert promotion, which include the exclusive right to sell concert tickets, by engaging in anticompetitive conduct including:

• Limiting radio airplay of artists who refuse to use Clear Channel's concert promotion services
• Denying promotional air-time to artists who use competing promoters
• Refusing to accept advertising by other concert promoters, charging excess fees for such advertising, or limiting such advertising to undesirable time slots
• Excluding concerts promoted by competitors from radio updates of upcoming concerts, and
• Inflating fees paid to artists, in some cases more than 100% of gross sales, in order to exclude competitors from the market

The complaints allege that as a result of defendants' conduct U.S. concert ticket prices rose 61 percent from 1997 to 2002, while the consumer price index rose only 13 percent during the same time period.  The complaints seek declaratory, injunctive, and monetary relief.

The Judicial Panel on Multidistrict Litigation transferred all similar actions alleging antitrust violations in the concert promotion and ticket market against Clear Channel to the United States District Court for the Central District of California for pretrial coordination.

The District Court thereafter appointed Lead Counsel and a Plaintiffs Executive Committee, and selected five of the seventeen regions to proceed as test cases.  Those test regions are the Denver Region, Boston Region, Chicago Region, Southern California Region, and New York Region. The Court stayed the cases in the remaining regions pending resolution of class certification motions in the five test regions.

On October 22, 2007, in a 135 page opinion, the Court granted Plaintiffs’ Motion for Class Certification and denied Defendants’ Motion for Judgment on the Pleadings.  The Court’s opinion is linked here.  On February 15, 2008, the Ninth Circuit Court of Appeals denied Clear Channel’s motion for a discretionary appeal of the class certification decision.

The District Court’s opinion granting class certification was based, in part, on the standard for class certification set forth in recent Ninth Circuit opinion, Dukes v. Walmart, 509 F.3d 1168 (9th Cir. 2007).   The Dukes opinion is currently subject to a petition for rehearing in the Ninth Circuit. Accordingly, on March 7, 2008, pursuant to a stipulation between Plaintiffs and Clear Channel, the District Court stayed the Live Concert Antitrust Litigation pending resolution of the petition for rehearing in Dukes, or until September 2008 at the latest.