States’ trial against Live Nation could move forward as soon as next week

The Live Nation trial is not over yet. Several states look to be headed to trial on their own as soon as Monday unless they hash out a settlement in the next few days.

On Tuesday, a day after the Justice Department revealed in court it had reached a settlement with Live Nation that a handful of states had agreed to, Judge Arun Subramanian held a hearing on the future of the case. He ordered Live Nation CEO Michael Rapino, DOJ Antitrust Division acting chief Omeed Assefi, and representatives of states that hadn’t settled to stay at the Manhattan courthouse and attempt to reach a broader deal. Subramanian has not yet ruled on a mistrial motion that dozens of state plaintiffs filed yesterday, but he seemed inclined to move forward with trial next week should they remain without a settlement by then. As of Monday, 27 states and DC were part of the group of proceeding plaintiffs, out of the 40 total attorneys general.

Subramanian seemed to be the only one both optimistic at the possibility of a settlement and eager for the trial to continue quickly if it wasn’t reached. Several states have repeatedly said they wish to pursue a case against Live Nation in court and won’t accept a settlement that fails to satisfy their concerns. Live Nation’s corporate representative Dan Wall assured the judge, “There is zero chance we get this done by Friday.”

“Well, not with that attitude,” Subramanian retorted.

While the court laughed, it seemed that Subramanian was mostly serious. He offered his robing room, the juror room in his usual courtroom, and other spaces for the parties to continue their talks. “You will remain here,” he told the state representatives for the settlement committee, composed of New York, California, DC, Texas, and Tennessee. “We are all here and we are all staying here,” he said — that included the judge himself, who said he’d be around in case they reached an impasse.

Wall said the states have an array of demands that includes not just monetary damages but injunctive relief that could involve changes to its business. “We want to stick the landing here and we won’t stick the landing between today and Friday,” he said. Subramanian appealed to Rapino’s negotiation experience. “When people have their attention focused and they’re there, that’s 90 percent of the ball game sometimes,” the judge said.

The DOJ announced its settlement with Live Nation abruptly on Monday, with the jury waiting outside the courtroom and ready to continue hearing testimony from the prior week. Subramanian dressed down attorneys on both sides for failing to communicate the settlement to him earlier, particularly because the date on the signed term sheet was last Thursday. The group of states who wanted to continue trying their claims moved for a mistrial, saying the jury would be prejudiced by the DOJ leaving the case at this point, and noting logistical issues that appeared at least somewhat resolved as of Tuesday.

Subramanian also took turns on Tuesday scolding each of the parties. He asked why the DOJ and Live Nation hadn’t disclosed to him when they’d signed a term sheet on Thursday, as trial continued before the jury on Friday. Assefi said the signature simply represented the parties’ agreement on “core terms” of the proposal in principle, and that they planned to continue discussing details with state AGs. The $280 million settlement fund described in the term sheet, for example, may only be paid out in part depending on how many and which states join. Since only the states are seeking monetary damages, Wall said those negotiations would occur with them.

For Live Nation itself, Subramanian seemed skeptical of why the company had backed off an initial inclination to oppose the states’ mistrial motion, and instead “agreed with the states without any input from the court on an elaborate protocol for a settlement, and putting off trial indefinitely.”

For the states, he reiterated that they should have been prepared to take over the case, knowing a settlement was on the table. “Both sides seem to want to go on vacation,” he said.

Before adjourning the courtroom for the talks to continue, Subramanian had one more positive message: “Good luck.”