Edvard Pettersson
LOS ANGELES (CN) — Millions of people who bought concert tickets through Ticketmaster are inching closer to proceeding as a class on claims that Live Nation Entertainment and its Ticketmaster subsidiary used their monopoly power to inflate ticket prices.
U.S. District Judge George Wu took the consumer’s motion for class certification under submission at a hearing Thursday in Los Angeles federal court.
Although the judge’s tentative decision wasn’t made publicly available, the tenor of the arguments before him indicated that he was likely to grant the motion.
To be able to proceed as a class will give the plaintiffs more leverage to try to negotiate a significant settlement because Live Nation could potentially face billions of dollars in damages if the case goes before a jury. Under federal antitrust law, plaintiffs are entitled to treble their actual damages if they prevail.
The named plaintiffs who filed the antitrust lawsuit almost four years ago are seeking to represent all U.S. purchasers who directly bought a primary ticket and paid fees for ticketing services for an event at a major concert venue in the U.S. from Ticketmaster at any point since 2010.
This proposed class will include millions of people, the plaintiffs said in their motion.
Tim O’Mara, an attorney for Live Nation and Ticketmaster, argued the plaintiffs failed to show that all buyers of concert tickets were similarly impacted by the companies’ purported anticompetitive conduct.
Specifically, O’Mara told the judge, the economic analysis of one of the plaintiffs’ experts — in support of their argument that the ticket buyers should be allowed to proceed as a class rather than individually — ignored a slue of differences between the size and the location of the venues where the concerts were held, as well as between the fees Ticketmaster negotiated with each of these venues for selling the tickets and any other services.
“You need to isolate the anticompetitive conduct,” O’Mara said. “If this can be certified as a class, then any case can be certified.”
Wu, however, appeared unwilling to make the reliability of the plaintiffs’ economic model a deciding issue at this point in the litigation. If Ticketmaster wanted to challenge the legal adequacy of the findings by the plaintiffs’ expert, the judge suggested they might want to do that with a pretrial motion.
“I don’t agree with you on the approach you’re taking,” the judge said. “This is a motion for class certification.”
In addition, Kevin Teruya, one of the plaintiffs’ attorneys, told the judge, under Ninth Circuit law, an expert’s analysis can be considered by a judge at this stage of the case unless there are “glaring issues,” which he said wasn’t the case here.
Typically, plaintiffs can proceed as a class if there are enough people who have been impacted in a similar way that it makes more sense to treat them as a group than on a case-by-case basis. It will strengthen their position against a defendant because their attorneys can combine their resources and will be less willing to accept a meager settlement.
Live Nation, the world’s largest concert promoter for major venues, and Ticketmaster, the ticketing company it acquired in 2010, have long provoked the ire of fans over the high ticket prices they are stuck paying because of Ticketmaster’s control of the market.
In the antitrust complaint, the plaintiffs say Live Nation pays the world’s biggest artists over the top to arrange their tours and makes up its losses from these arrangements by coercing concert venues in long-term, exclusive contracts to use Ticketmaster to handle the ticket sales.
As a result, the plaintiffs argue, Ticketmaster dominates the market for tickets at large concert venues and can charge fans excessive fees in the so-called primary market for these tickets. In addition, they claim, Ticketmaster forces consumers and ticket brokers who want to resell tickets they bought on its site to use Ticketmaster as well, given the company’s control over the secondary market for concerts at these venues.
Wu, a George W. Bush appointee, previously denied Ticketmaster’s bid to force the ticket buyers to arbitrate their grievances, and earlier this year, he rejected the company’s attempt to dismiss the case.
