Live Nation, States Clash Over New Antitrust Ruling Before Post-Trial Hearing

A Second Circuit decision involving radio-ratings data says illegal tying can be imposed through pricing and policy rather than an explicit contractual requirement – which . States say that supports the theory a jury accepted against Live Nation; the company argues the ruling instead exposes deficiencies in the states’ proof.

A new federal appeals court ruling involving radio ratings has become the latest battleground in the states’ antitrust case against Live Nation and Ticketmaster, with both sides claiming the decision supports their position as the companies attempt to overturn a sweeping jury verdict.

A coalition of state attorneys general submitted the July 13 decision in Cumulus Media New Holdings Inc. v. Nielsen Co. as supplemental authority supporting their opposition to Live Nation’s requests for judgment as a matter of law or a new trial. Live Nation responded one day later, arguing that the ruling offers the states no help and instead reinforces several elements it says they failed to prove.

U.S. District Judge Arun Subramanian is scheduled to hear arguments Wednesday on Live Nation’s post-trial motions. The outcome could determine whether the jury’s findings remain intact before the case moves toward remedies, including the states’ anticipated request for structural changes that could separate Live Nation and Ticketmaster.

Second Circuit Recognizes ‘Constructive’ Tying

The Cumulus case involves Nielsen’s sale of two related but distinct radio-ratings products.

Nielsen is the only supplier of comprehensive national radio-audience data in the United States. It also sells local-market ratings data, where it faces at least some competition from Eastlan.

Cumulus wanted Nielsen’s national report but sought to purchase local data from Eastlan in some markets. Nielsen adopted a policy requiring national broadcasters to purchase its local data in every market where they operated to obtain the national report. After Cumulus challenged that policy, Nielsen offered the national product separately—but at approximately 10 times the amount Cumulus had previously paid, according to the court record.

A federal district judge issued a preliminary injunction after finding that the standalone price was economically unworkable and effectively preserved the same forced bundle. The Second Circuit upheld that order.

The appeals court rejected Nielsen’s argument that an illegal tie must take the form of an express refusal to sell one product without another. It held that a company can also impose a “constructive” tie through a pricing structure that leaves a buyer with only one economically rational option: purchasing the products together.

The decision does not make every product bundle, pricing differential or aggressive sales practice unlawful. A plaintiff must still prove actual coercion, market power in the tying product, competitive harm in the tied market and the other elements required for a tying claim.

In Nielsen’s case, the court found sufficient preliminary evidence that Cumulus was being forced to purchase local data it did not want from Nielsen, preventing it from buying that data from a competitor. The court also upheld findings that Nielsen’s conduct impaired Eastlan’s ability to gain customers, scale and industry acceptance in local ratings markets.

States Say Ruling Supports Theory Accepted by Jury

The states argue that the Second Circuit applied substantially the same tying requirements that Subramanian gave the jury during the Live Nation trial.

The relevant Live Nation claim did not concern a direct tie between amphitheaters and concert tickets. Instead, the states accused Live Nation of using its control over access to large amphitheaters to pressure artists into purchasing the company’s concert-promotion services.

Jurors found that Live Nation monopolized the market for artists’ use of large amphitheaters and unlawfully tied its promotion services to access to those venues. They also ruled against Live Nation and Ticketmaster on the states’ separate primary-ticketing monopolization claims.

Live Nation has argued in its post-trial motions that the states failed to establish a legally sufficient tied market, actual coercion or competitive harm to rival promoters.

The states say Cumulus reinforces their response to those arguments because it confirms that coercion need not be contained in an explicit written rule. A company’s policies, negotiations and continued enforcement of economically coercive conditions can be enough for a jury or court to find that one product was conditioned on another.

That principle matters in a case where much of the states’ theory concerned the practical leverage created by Live Nation’s integrated control of promotion and essential amphitheater access—not a contract expressly telling artists that they must hire Live Nation as promoter to use a venue.

A jury has already determined that Live Nation engaged in such conduct in this case, making that factual determination after hearing six weeks of testimony and reviewing the companies’ documents. Cumulus supports the threshold legal proposition that the jury was permitted to consider coercion expressed through commercial realities rather than only an explicit tying clause.

Live Nation Says Nielsen Facts Were Fundamentally Different

Live Nation argues that the states are attempting to detach Cumulus from the facts that drove the ruling.

The company notes that Nielsen had adopted an express policy tying access to national data to purchases of local data. Although Nielsen later nominally offered the national product separately, the Second Circuit found that the dramatically higher price continued enforcing the original policy in practice.

Live Nation says there was no equivalent policy in its case and no evidence that any artist unwillingly purchased promotion services. It also argues that the states failed to show harm in a properly defined promotion market comparable to the evidence that Nielsen’s policy prevented Eastlan from obtaining customers and achieving scale.

The defense points specifically to AEG, Live Nation’s largest concert-promotion rival. The states argued at trial that AEG had lost opportunities to promote amphitheater tours, but Live Nation maintains that the company remains successful and was not excluded from the market in the manner described in Cumulus.

The decision also arose at the preliminary-injunction stage. The Second Circuit was reviewing whether the district court abused its discretion based on an early factual record—not issuing a final judgment that Nielsen had violated antitrust law.

Even so, that procedural distinction may limit the decision’s factual weight more than its legal relevance. The states are not asking Subramanian to treat Nielsen’s conduct as identical to Live Nation’s. They are citing controlling appellate authority confirming that a tie can be imposed indirectly through commercial conditions that leave buyers without a realistic alternative.

That legal conclusion appears more naturally aligned with the states’ position that the jury could consider Live Nation’s venue leverage and promotion practices even without a formal written requirement connecting the two services.

Live Nation’s stronger response is therefore not that constructive tying is unavailable, but that the evidence presented during its trial did not satisfy the doctrine’s remaining requirements.

Verdict Faces Its Next Test

The dispute arrives more than three months after the jury found Live Nation and Ticketmaster liable across every major antitrust theory submitted to it.

Jurors found monopolization in two primary-ticketing markets, monopolization of artists’ use of large amphitheaters and unlawful tying involving Live Nation’s promotion services. They also found harm in the plaintiff jurisdictions and calculated a $1.72-per-ticket consumer overcharge for the states that sought damages.

Live Nation has asked Subramanian to set aside those findings or order a new trial, challenging the states’ market definitions, tying evidence, expert testimony and damages model.

The Cumulus decision will not determine those motions by itself. It does, however, give the states recent Second Circuit support for one of the central legal premises underlying the amphitheater verdict: antitrust law looks at whether a company’s conduct actually coerces buyers, not merely whether the coercive condition was formally written down.

Wednesday’s hearing will determine whether that principle—and the evidence the jury heard applying it—are sufficient to keep the verdict intact.