26 States (Plus D.C.) Seek Mistrial in Live Nation Legal Battle

An empty jury box. Photo Credit: Ken Lund

On the heels of the Justice Department’s Live Nation settlement, more than two dozen states are plowing ahead with litigation – and aggressively pushing for a mistrial.

The relevant states entreated the court to declare a mistrial yesterday, soon after the DOJ and Live Nation revealed their mid-trial agreement. Of course, it’s not every day that a major antitrust action, featuring separate claims from the federal government and states, partially resolves while a jury is already seated.

As such, there are a number of moving parts in play here. First, regarding the meaning of “relevant states,” as of Monday morning, nearly 30 attorneys general had committed to forgoing the federal settlement and pursuing their own claims.

And while seven states promptly bowed out, the likes of West Virginia, Louisiana, and Indiana hadn’t “taken a position on whether they intend to join the proposed settlement,” according to the remaining plaintiffs’ motion.

(Said motion listed Connecticut as a post-settlement party to the suit, but its memorandum didn’t do so; AG William Tong in a press release backed continued litigation. Again, many moving parts – including in terms of each plaintiff state’s unique antitrust laws and regulatory framework.)

When it comes to the mistrial push, despite the long-rumored settlement talks, the state-level litigants maintained that they’d “been kept in the dark and excluded materially from settlement discussions.”

“Only at approximately 3:30 P.M. on March 3 did Defendants provide counsel for the Plaintiff States with proposed settlement terms—and only in hard copy to the five attorneys who were physically at the office of Defendants’ settlement counsel,” they wrote.

And in the remaining plaintiffs’ view, the federal government’s having presented “itself as the lead plaintiff to the jurors will very likely cause the jury to conclude that the antitrust violations of Defendants have been resolved” with the settlement, thereby affecting the unresolved claims.

“Declaring a mistrial will enable a new, untainted jury to be empaneled and provide the Proceeding Plaintiff States with the time required to marshal the resources to assume the lead role at trial,” they spelled out. “Therefore, a new trial is warranted.”

Furthermore, the states are seeking a “limited stay for purposes of preparing for the new trial and to evaluate the terms of the settlement.”

It didn’t take very long for Live Nation to respond to the mistrial request, indicating in the appropriate motion that it’d hammered out a “pragmatic solution” with the states.

In a nutshell, with the court’s sign off, this solution would see Live Nation drop its mistrial-motion opposition in exchange for “a mandatory settlement conference or mediation, to take place within 30 days.” Should all the outstanding claims fail to resolve, the court would then set a scheduling conference for a new trial.

At the time of this writing, the presiding judge hadn’t weighed in on the motions. As we await additional developments on this front, it’s worth reiterating the $280,388,297 “settlement fund” established under the DOJ’s Live Nation decree.

The decree is still subject to final approval; these details come from the resolution term sheet submitted by the Justice Department and Live Nation. But the $280.4 million tranche is specifically designed “to settle claims for monetary relief and/or civil penalties brought by certain states.” And the same fund would also cover, among other things, any attorneys’ fee award.

“There is no financial component to the settlement with the DOJ,” Live Nation elaborated in a statement. “This does not settle the claims of all plaintiffs in the lawsuit, and the company has created a $280 million settlement fund to address the states’ damages claims.”