June 20, 2009 By Alfred Branch Jr.
Attorneys for Maryland-based promoter Seth Hurwitz, owner of Washington, DC’s famed 9:30 Club, filed counter motions this month against Live Nation in the antitrust case Hurwitz filed against the company earlier this year. Hurwitz had been working on the original lawsuit for about a year but filed it after he testified before Congress in February against the proposed Ticketmaster/Live Nation merger, giving the impression his lawsuit was about that plan, but it was separate.
“Contrary to Live Nation’s arguments, plaintiffs have identified specific artists who would have utilized I.M.P.’s promotional services and appeared at Merriweather Post Pavilion (“Merriweather”), an amphitheatre in Columbia, Maryland I.M.A. operates, but for Live Nation’s conduct,” Hurwitz’s most recent motion states. “Further, rather than conceding Live Nation promoted artists have appeared at Merriweather, as Live Nation claims, plaintiffs actually allege that Live Nation so dominates the concert industry that it was able to force artists to require plaintiffs to pay 25% of their profits with respect to concerts that Live Nation did not promote and with which it would have had no involvement. This is extraordinary economic power, akin to Coca-Cola requiring Pepsi-Cola to share its profits for permitting retailers to stock Pepsi. Live Nation’s contention that plaintiff’s Complaint defies economic sense ignores their own Chief Executive Officer’s admissions while testifying before the Antitrust Committee that Live Nation losses money on promotional services and profits only through sales at its venues.”
In a motion to dismiss filed during the spring, Live Nation argued that it does not own or operate venues in the Washington, DC or Baltimore markets, nor does it steer artists away from those areas or the facilities that Hurwitz controls or manages.
“At this point I am going to let the suit, which we have been preparing for more than a year, speak for itself. It says it all and I would prefer people read it and fully understand the claims we are making,” Hurwitz said in a prepared statement. “But, basically, we contend that the essence of the tour deal is to use monopoly power to force artists to play only for Live Nation venues and where they wouldn’t otherwise, to the detriment of concertgoers, independent promoters and the artists.”
He continued, “There is a huge difference between enticing artists to play your venues by doing a better job, versus forcing them to play your venues by controlling the market and the acts. Live Nation has attempted to portray this as evolution into a better business model, but we contend that it is intended to prevent fair legitimate competition, which is illegal. All I want is the opportunity to compete fairly, and we are asking the Court to give us that opportunity.”
Live Nation Global Music CEO Jason Garner told the Washington Post that while the company competes with Hurwitz’s company I.M.P., it’s I.M.P. that has the clout in that market. “We compete heavily with Seth in the D.C. market. And the fact is, he is the dominant promoter in the Washington, D.C., area. We do 5 percent of the shows in the market. … If we had the supposed power that Seth alleges, we wouldn’t have 5 percent of the market share.”