What’s Next in the FTC v. Live Nation BOTS Act Lawsuit?

Washington, D.C.’s Apex Building, which serves as the headquarters of the FTC. Photo Credit: Harrison Keely

Following a federal ruling confirming that the BOTS Act doesn’t just apply to bot-powered ticket purchases – or individuals – where does the FTC v. Live Nation case go from here?

That pressing question is front of mind for two main reasons. Most immediately, pretty much everyone is aware of states’ recent victory over Live Nation and Ticketmaster. One rollercoaster trial later, a jury determined that the companies had “engaged in unlawful conduct” en route to harming competition and overcharging consumers for tickets.

Besides being decidedly significant on its own – all eyes are now on the plaintiffs’ relief demands – the win is relevant in the FTC’s Live Nation suit. At a minimum, the latter’s plaintiffs certainly haven’t been discouraged by the triumph.

Filed this past September and likewise featuring multiple state plaintiffs, the BOTS Act action accuses Live Nation/Ticketmaster of allowing “ticket brokers to exceed ticket limits” and of earning “hundreds of millions of dollars in revenue by systematically violating the” BOTS Act.

Yesterday, we covered the second reason that FTC v. Live Nation is once again a central focus: A federal judge rejected a dismissal motion from the alleged ticket-broker defendants in a separate BOTS Act legal battle, and the FTC quickly invoked the ruling in the Live Nation/Ticketmaster case.

According to the court, the BOTS Act “unambiguously applies to ‘any person’ and not just to ‘bots.’” Furthermore, the core issue of sky-high ticket prices stemming from “circumventing posted security measures” could be the result of actual bots, the human(s) who developed them, or a coordinated group effort, Judge George L. Russell, III determined.

But can ticketing platforms themselves be held liable under the BOTS Act? Unsurprisingly, Live Nation and Ticketmaster don’t believe so; in a dismissal push, they fired back against the “radical position” that resale platforms should face BOTS Act liability as the “seller” behind third-party listings.

“The plain language of the statute Congress wrote targets scalpers who circumvent ticket-issuers’ technological controls to acquire tickets and those who knowingly traffic in those ill-gotten tickets; it does not convert ticketing platforms into sellers,” the defendants penned.

In support of the position, Live Nation/Ticketmaster dedicated much ink to exploring the text and perceived intent of the BOTS Act. And while there are a lot of angles to cover here, it’ll be worth keeping in mind the defendants’ argument that “the best way” for platforms to avoid liability under the anti-circumvention law as framed “is to use no technological controls or measures at all.”

More immediately, it seems safe to say that continued pressure from federal lawmakers isn’t doing Live Nation/Ticketmaster any favors in the BOTS Act case.

As we reported yesterday, Senators Marsha Blackburn and Ben Ray Luján submitted an amicus brief opposing the dismissal motion in FTC v. Key Investment Group; the judge cited their comments in his decision.

Those same senators as well as five others (from both sides of the aisle) also filed a brief in support of the plaintiffs in FTC v. Live Nation. Subsequently, the promoter refuted the claims and downplayed the corresponding brief as “submitted by a handful of legislators.”

However, that nearly 10% of the Senate felt compelled to weigh in on the case seems an apt representation of the broader regulatory and legal climate for Live Nation, which is currently running its “Summer of Live” $30 tickets promotion.