Showing posts with label DOJ. Show all posts
Showing posts with label DOJ. Show all posts

Monday, January 30, 2023

Senate inquisition of Ticketmaster is antitrust theater

Ginny via Flickr CC BY-SA 2.0
Inquisition of Ticketmaster in the Senate last week made headlines, but it's so much antitrust theater, and Ticketmaster and parent Live Nation know it.

Senators love to play hard-nosed before the cameras, and then assiduously do nothing to alienate the corporatocracy. Breathless reporting on the hearing in the Judiciary Committee would have you believe that this is Ticketmaster's first dance. It's not.

The Justice Department signed off on Ticketmaster's very merger with Live Nation in 2010 (N.Y. Times). The N.Y. Times Dealbook Newsletter further recalled:

In 2019, [Sen. Amy] Klobuchar [D-Minn.] and Senator Richard Blumenthal, Democrat of Connecticut, urged the Justice Department to investigate the "broken" ticket industry.

Artists have long complained about Ticketmaster’s role. The band Lawrence, whose co-founder, Clyde Lawrence, wrote a Times Opinion essay on the topic last year, included the line "Live Nation is a monopoly" in its 2021 song "False Alarms." Perhaps most famously, Pearl Jam filed an antitrust complaint against Ticketmaster in 1994—16 years before it merged with Live Nation—kicking off a federal investigation that ultimately fizzled.

(Read more about the Pearl Jam claim from Rolling Stone in 1995. (UPDATE, Feb. 5: On the Media looked back at the Pearl Jam matter two days ago.)) House Democrats asked the Biden Administration to take another look at the Live Nation merger in the spring of 2021, well before the Taylor Swift ticketing fiasco (N.Y. Post).

Founded in 1976, Ticketmaster was on its way to market dominance and a lousy reputation with concertgoers by the time I was a teenager. Already transnational, it took the market lead when it acquired Ticketron in 1991.

Live Nation was once a growing competitor to behemoth Ticketmaster. In 2000, Live Nation was acquired by Clear Channel Communications, and then was spun off in 2005. It soon started work on the Ticketmaster merger, which was announced in 2009 and approved by the Obama Justice Department in 2010.

Clear Channel itself is another chapter in the government's pathetically permissive record of antitrust enforcement in media and entertainment. In 2001, Jesse Morreale, a Colorado concert promoter (and my first cousin), along with partners in Nobody in Particular Presents, Inc., sued Clear Channel for shameless vertical integration in the music business.  The federal district court in Denver denied Clear Channel summary judgment in 2004 (more behind pay wall at Rolling Stone). The case subsequently settled. Clear Channel's vertical integration was a more sophisticated descendant of simple payola, an unfair practice in the music industry as old as regulatory agencies themselves. 

It's a normal market dynamic for industry and antitrust regulators to play a cat-and-mouse game over the long term. But Ticketmaster has been only a clever Jerry to the government's buffoonish Tom for going on half a century.

Saturday, August 13, 2022

NBC resists TV free market, overcharges U.S. viewers: PL football costs $20 in Canada, $70 in United States

Each year, I become freshly enraged at the cost of seeing Premier League football in the United States, a ready example of antitrust non-enforcement in the communication sector.

The Sporting News had the audacity, or stupidity?, to describe NBC carriage of PL matches in the United States as a "luxury." I guess it is, a luxury only the rich can afford. To follow one's team, one must, at minimum, subscribe to NBC partner FuboTV for $70 per month. Access via FuboTV costs just US$20 per month in Canada.

The tangled cross-ownerships of what used to be broadcast TV are indicative of the dearth of consumer protection in the area. NBC "competitor" CBS (Viacom) owns a stake in FuboTV. The legacy broadcasters are using their weight in contracting power to lock down content in channel consolidators that emulate the old cable TV business model, by which consumers were compelled to overpay for a sliver of content in a library they didn't want. Hardly the free market promise of streaming.

But the FCC long ago left the helm unmanned on consumer protection when broadcasting gave way to cable. And the FTC and DOJ have had little interest in expanding their purview in times of corporate-captured governance. As usual, the United States purports to model free market capitalism in an oligopolized market that is anything but.

FuboTV in Canada at left, United States at right.
The package in Canada has fewer channels,
but if PL is all you want, that's not an option.

Thursday, October 22, 2020

Opioids, coronavirus add up to dangerous interaction

pxfuel.com
Purdue Pharma will plead guilty to criminal charges in the marketing of OxyContin, the Justice Department (DOJ) announced yesterday.  Meanwhile, addiction and coronavirus are dangerously interrelated, Dr. Joseph Grillo warns.

DOJ settled with Purdue Pharma in civil and criminal investigations, and with Sackler family shareholders in civil investigation.  Purdue will admit that it conspired to defraud the United States by misleading and impeding enforcement by the Drug Enforcement Administration for almost 10 years.  Purdue also will admit to conspiring to violate the Federal Anti-Kickback Statute with inducements to doctors to prescribe opioids for almost eight years.  (Purdue Plea.)

On the civil side, Purdue will settle, without admission, allegations of false claims to federal healthcare programs, of improper inducements to prescribing doctors, and of improper contracts with fulfilling pharmacies.  The government will have an unsecured claim on $2.8bn in Purdue's bankruptcy.  (Purdue Settlement Agreement.)  Purdue shareholders in the Sackler family will pay $225m in settlement of allegations that they approved an intensified opioid marketing program.  (Sackler Settlement Agreement.)

The settlements do not resolve state claims.

Opioids have taken more than 450,000 American lives since 1999, The New York Times reported yesterday, citing CDC research.  COVID-19 deaths now exceed 220,000, according to the CDC.

In 2020, the coronavirus pandemic nudged the opioid epidemic out of the number one spot for enemy of public health.  But the two are hardly mutually exclusive.  Addiction, of all types, interacts with the threat of coronavirus in a mutually exacerbating feedback loop.  Joseph Grillo, M.D., J.D., and an alum of my torts class, raised a warning flag on his blog yesterday.

"Two great epidemics of our generation are intersecting in ways that are additively deadly, and which highlight the urgent ways we must respond to some of the underlying fault lines in our society that are worsening both crises," Dr. Grillo wrote.

Read more about substance use disorders (SUD) and coronavirus at A Pandemic Within a Pandemic, Joseph Grillo, M.D. Medical Legal Consulting, Oct. 21, 2020.

Saturday, September 12, 2020

Defamation case against Trump fits woeful pattern, while DOJ defense is defensible, if disconcerting

Notice of Removal in Carroll v. Trump
The recent news (e.g., N.Y. Times) that the Department of Justice (DOJ) will defend the President in the defamation suit arising from sexual-assault allegations by E. Jean Carroll has caught the interest of both my Torts I class and my Trump Litigation Seminar (TLS).  The DOJ's announcement manifests on the docket in removal of the case from the New York Supreme Court to the U.S. District Court for the Southern District of New York.  Links and key court documents are now posted atop The Savory Tort's TLS blogsite.

The strategy of using a sexual-assault denial and accompanying charge that the accuser is a "liar" as the basis for a defamation suit against the alleged perpetrator, i.e., Carroll v. Trump, is now, unfortunately, a familiar feature of our high-profile tort-litigation landscape.  It might have been Bill Cosby who committed the pattern to popular culture's long-term memory.  The Cosby case came complete with counterclaims, making the defamation dispute the dueling ground for truth and falsity.

It's unfortunate, because the tort of defamation was not designed to be a truth-finding mechanism.  Historically, truth wasn't even a defense; that's a modern artifact inferred by the freedom of speech.  The flaws in our defamation law are legion and one of my favorite subjects; one that matters here is that defamation is rarely capable of delivering exoneration, much less satisfying any of a plaintiff's legitimate aims.

Among reforms of defamation that have been proposed over the years are mechanisms to ferret out and publicize truth, rather than focusing on the plaintiff's alleged injury or the defendant's asserted rights.  Though not always well crafted, laws that incentivize correction or settlement over protracted litigation at least aim in the right direction.  Regrettably, reform of defamation has been hamstrung for decades by the Supreme Court's well intentioned but ultimately improvident constitutionalization of defamation in the 1960s and 1970s.  I hope one day, we'll wade our way out of that morass.

Anyway, on the question of the DOJ's intervention, there's a curious conundrum about Carroll v. Trump.  The DOJ position is that Trump was acting in the scope of the office of the President when he denied Carroll's sexual-assault allegations.  We would, after all, hope that any President would deny such allegations, and we would have to admit that the truth of the allegations bears on his fitness for office.  Thus, the DOJ reasons, it must represent the position of the President.  The bitter pill for Trump opponents to swallow is that that's probably right.

The kicker comes in that Trump's denial is only presidential if he's telling the truth.  If he did what Carroll alleged, then the operative facts of the case occurred before Trump was elected.  His later denial then feels more like the mere pleading of a private defendant in an ordinary civil suit.  You know, one in which we might debate what the meaning of is is.  So the rationale for defense by DOJ is predicated on the very question at issue in the litigation.  For DOJ to take the President's denial as true, for now, is a fair, if uncomfortable, choice.  If one day the court rules in Carroll's favor, though, maybe we can send the legal bill to the former President.

Thanks to TLS student Ricardo Serrano and Torts student Paul McAlarney for helping me think about this one.

[UPDATE Oct. 27, 2020.]  The court denied the government's motion to substitute party on Oct. 27, 2020.  See Special Coverage at the Trump Litigation Seminar.