Latest / Bloomberg Law / Weekend Law: Musk Testifies in Twitter Investor Fraud Case, Live Nation's Antitrust Trial

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Weekend Law: Musk Testifies in Twitter Investor Fraud Case, Live Nation's Antitrust Trial · Bloomberg Law

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  Speaker 2: Bloomberg Law with June Grosso from Bloomberg Radio.
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  Speaker 5: Welcome to the weekend edition of Bloomberg Law. I'm Amy
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  Speaker 5: Morris in for June Grosso.
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  Speaker 1: June's off this week.
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  Speaker 5: Coming up this hour, we'll be focusing on a couple
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  Speaker 5: of major antitrust cases. Will break down the Justice Department's
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  Speaker 5: case against Live Nation as that trial gets underway. We'll
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  Speaker 5: take a deep dive on baseball is exempt from antitrust laws.
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  Speaker 5: All of that is on the way on Bloomberg Law
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  Speaker 5: just ahead, But first let's begin with Elon Musk's Big
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  Speaker 5: Securities fraud class action case. The billionaire took the stand
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  Speaker 5: in federal court in San Francisco to defend himself against
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  Speaker 5: claims that he deliberately drove down Twitter's stock price before
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  Speaker 5: he bought it by tweeting Bloomberg's Jeff Eely is in
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  Speaker 5: San Francisco. He's been following this case and joins us
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  Speaker 5: now to bring us up to speed. First of all, Jeff,
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  Speaker 5: the tweet that is at the center of this case,
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  Speaker 5: what did that tweet say?
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  Speaker 1: What was it about?
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  Speaker 4: It was a tweet in May of twenty twenty two
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  Speaker 4: in which mister Musk, who was frustrated by Twitter's foot
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  Speaker 4: dragging on handing over information that he wanted to tie
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  Speaker 4: to the deal. He basically tweeted out that he was
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  Speaker 4: putting the deal on hold temporarily until they could give
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  Speaker 4: him the material he sought. That same day that he
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  Speaker 4: issued that tweet, he also issued a tweet saying he
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  Speaker 4: was still committed to the deal. So, you know, he
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  Speaker 4: claims that it was frustration. The investors who are suing
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  Speaker 4: him claim instead that it was really part of a
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  Speaker 4: campaign to drive down Twitter's share price so he could
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  Speaker 4: buy it on the cheap.
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  Speaker 1: Let's talk about that.
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  Speaker 5: Your story on the Bloomberg terminal says that this trial
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  Speaker 5: is going to take a closer look at that six
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  Speaker 5: month window when Musk was going to take over Twitter,
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  Speaker 5: then tried to withdraw the offer and then went through
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  Speaker 5: with the deal because the company sued him. What's the
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  Speaker 5: line that may be crossed here between someone having second
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  Speaker 5: thoughts about a deal or just being flaky about a
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  Speaker 5: deal versus someone deliberately trying to manipulate a deal.
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  Speaker 1: Is that what they're trying to prove, right.
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  Speaker 4: That's exactly what they're trying to prove. In M and
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  Speaker 4: A litigation, which we cover a lot of in Delaware,
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  Speaker 4: you're always going to get allegations of buyer's remorse.
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  Speaker 6: You know.
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  Speaker 4: M and A situations are always tied to the market.
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  Speaker 4: Market fluctuates, the bases for deals can be affected. Here,
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  Speaker 4: the investors contend that it was not fluctuations in the
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  Speaker 4: market that really drove Elon to start thinking about trying
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  Speaker 4: to reprice the deal. It was really the fluctuations in
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  Speaker 4: the Tesla stock price. He was using Tesla shares to
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  Speaker 4: both generate cash for the deal and secure loans, and
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  Speaker 4: they took a dive during that period, and that made
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  Speaker 4: it made the deal much more expensive for mister Musk.
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  Speaker 4: So the investors contend that he launched an organized campaign
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  Speaker 4: to attack Twitter to in hopes in hopes of drying
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  Speaker 4: down the stock price so he wouldn't have to pay
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  Speaker 4: as much for the company.
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  Speaker 5: Now, he did wind up paying forty four billion for Twitter,
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  Speaker 5: that's right. Did they intend for him to pay more
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  Speaker 5: or is there a share price that should have been
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  Speaker 5: up instead of down or where's the discrepancy?
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  Speaker 4: Well, the discrepancy here is the deal of the timeline
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  Speaker 4: is mister Musk makes an offer, Tesla shares crash, Mister
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  Speaker 4: Musk attempts to renege on the deal, Twitter sues, Mister
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  Speaker 4: Musks counter sues, and then after some pre trial rulings
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  Speaker 4: from the judge in Delaware that were not favorable to
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  Speaker 4: mister Musk, he decided to wave the white flag and
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  Speaker 4: pay the full fifty four point twenty per share that
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  Speaker 4: he had originally offered. So you know, it was this
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  Speaker 4: is a you always have two versions of reality and
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  Speaker 4: legal disputes, and this jury's going to decide which one
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  Speaker 4: of the views of reality.
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  Speaker 6: Sound more plausible to them.
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  Speaker 5: So then what do the investors want if they ultimately
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  Speaker 5: got the money that he had promised?
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  Speaker 1: What are the other things?
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  Speaker 4: Are some Yeah, these are some investors who, when mister
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  Speaker 4: Musk issued his May thirteen tweet, decided or figured that
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  Speaker 4: he had, you know, he was pulling out of the deal,
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  Speaker 4: and they sold their shares in the thirties rather than
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  Speaker 4: getting fifty four to twenty per share in October when
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  Speaker 4: the deal closed.
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  Speaker 5: I see, So it's about them having sold their shares
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  Speaker 5: based on the idea that he's backing out.
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  Speaker 4: That's right, And under securities fraud, you are bored in
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  Speaker 4: an m and a situation from making a false or
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  Speaker 4: misleading statement that would affect you know, the market, and
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  Speaker 4: the investors can tend that that's what this temper deal
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  Speaker 4: placed on temporary hold was. It was a false or
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  Speaker 4: misleading statement.
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  Speaker 1: Isn't that interesting?
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  Speaker 5: I was thinking about how this is basically all based
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  Speaker 5: on a tweet, and how unusual that is because there's
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  Speaker 5: no documentation, there's nothing signed. He could probably argue that
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  Speaker 5: it was just something he thought that he just tossed
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  Speaker 5: out there, and.
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  Speaker 4: That's exactly what he's arguing.
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  Speaker 1: By the way, I nailed it.
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  Speaker 5: So there's no documentation there, there's nothing signed. He could
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  Speaker 5: argue that it was just a thought that he tossed
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  Speaker 5: out there, which is what he did. How would this
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  Speaker 5: change how future securities fraud suits might be handled? Social
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  Speaker 5: media may be changing how the courts are looking at this,
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  Speaker 5: how juries are looking at this.
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  Speaker 1: Is that actually a factor? Now?
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  Speaker 4: You know, I'm not sure you might argue that you're
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  Speaker 4: going to have more security fraud because people, you know,
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  Speaker 4: are availing themselves of public platforms like Twitter, which is
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  Speaker 4: of course now called X. I think this is pretty much,
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  Speaker 4: you know, your garden variety secure federal security fraud. It's
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  Speaker 4: being tried in federal court San Francisco, by the way,
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  Speaker 4: and I don't you know, it's all going to come
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  Speaker 4: down to whether the jury believes that mister Musk had
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  Speaker 4: intent to drive the stock price down. And that's very
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  Speaker 4: hard to prove. Okay, so you know, nobody's This is
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  Speaker 4: no slam dunk by any stretch of the imagination.
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  Speaker 5: For the those who are suing for the investors, correct,
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  Speaker 5: because they have to show intent.
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  Speaker 4: That's right. And you know, in a criminal case, as
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  Speaker 4: you know, intent is inferred if you point a gun
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  Speaker 4: at someone, and a gun goes off. You are you know,
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  Speaker 4: the law basically infers that you intended to kill that person.
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  Speaker 4: Civil court completely different. You don't have that, you know,
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  Speaker 4: beyond a reasonable doubt burden that you have to meet.
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  Speaker 4: You know, you have to somehow get you know, persuade
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  Speaker 4: the jurors that fifty one percent of the scale tips
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  Speaker 4: in your favor when it comes to intent. But it's
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  Speaker 4: just very difficult to prove.
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  Speaker 1: How long would a case like this last.
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  Speaker 4: They're thinking this is going to take roughly two weeks
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  Speaker 4: to try.
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  Speaker 1: Well, that seems pretty quick for a securities broadcase.
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  Speaker 4: Well, you basically given each side a week, right, and
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  Speaker 4: it's it's you can do it in that. Again, there's
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  Speaker 4: not a lot of ground to cover here, you know,
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  Speaker 4: two or three tweets and a podcast that's the summoned
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  Speaker 4: substance of the allegations that were allowed to go to trial.
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  Speaker 4: The judge knocked out other allegations.
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  Speaker 5: Okay, Jeff Pheely, thank you so much for joining us
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  Speaker 5: with this. We do appreciate your insights and your time.
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  Speaker 5: Thank you so much, sure, Amy, and our thanks to Bloomberg'
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  Speaker 5: Jeff Feely for joining us. Now let's turn to the
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  Speaker 5: entertainment space in a highly anticipated antitrust case involving Live Nation.
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  Speaker 5: It is a massive entertainment company and they're in court
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  Speaker 5: to defend themselves against claims from the Department of Justice
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  Speaker 5: that it monopolized the live music market, acting as the
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  Speaker 5: biggest ticket seller while also running and in a lot
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  Speaker 5: of cases, owning some of the nation's biggest concert venues.
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  Speaker 5: The trial just got underway in New York. Joining us
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  Speaker 5: now to talk about what comes next. Bloomberg News anti
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  Speaker 5: trust reporter leon Elan Lea. Thank you for taking the
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  Speaker 5: time with us, Thanks for having me so for years.
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  Speaker 5: Let me just come at it from a fan point
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  Speaker 5: of view. For years, those of us who've attended concerts
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  Speaker 5: and bought tickets through ticket Master, which is owned by
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  Speaker 5: Life Nation, have complained about the cost, complained about the monopoly.
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  Speaker 1: And those are just the fans.
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  Speaker 5: That's not even the venue and the concert promoters and
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  Speaker 5: the agents and those who have also had to deal
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  Speaker 5: with Live Nation.
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  Speaker 1: Bring us up to speed. How we got here.
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  Speaker 7: Yeah, so Live Nation bought Ticketmaster. They used to be
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  Speaker 7: separate companies back in twenty ten. At the time, this
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  Speaker 7: was during the Obama administration. There was an any Trust
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  Speaker 7: review of the deal, and they were concerned because Live
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  Speaker 7: Nation is what's known as a concert promoter, so they
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  Speaker 7: own both a bunch of concert venues, but they also
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  Speaker 7: help promote concerts, so they have people who help artists
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  Speaker 7: sort of pick out which venues that they're going to
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  Speaker 7: perform at and then arrange all of the details of
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  Speaker 7: a tour. And they wanted to buy Ticketmaster, at the time,
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  Speaker 7: the largest ticketing company. The Justice Department decided to allow
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  Speaker 7: this to go through, but with some conditions, and the
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  Speaker 7: conditions were that Live Nation could not retaliate against any
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  Speaker 7: venues that wanted to use other concert promoters or other
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  Speaker 7: ticketing services.
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  Speaker 5: So the.
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  Speaker 1: Merger was allowed to go through.
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  Speaker 7: Everything went along, but the Justice Department alleges that Live
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  Speaker 7: Nation repeatedly sort of violated a lot of these orders.
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  Speaker 7: There were allegations that they were threatening venues to sort
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  Speaker 7: of make them use Ticketmaster, which is why something like
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  Speaker 7: eighty seven percent of venues across the United States used
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  Speaker 7: Ticketmaster instead of other ticketing options. So the Justice Department
• 11:31
  Speaker 7: went back to court changed its sort of agreement with
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  Speaker 7: Ticketmaster to one in which it had a monitor and
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  Speaker 7: it had a lot more obligations and they feel that
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  Speaker 7: that didn't work either. This sort of bad conduct continued,
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  Speaker 7: so the Justice Department under the Biden administration started a
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  Speaker 7: new investigation, and in twenty twenty four they assued Ticketmaster
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  Speaker 7: for being a monopoly in multiple markets. Now, some of
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  Speaker 7: the case ended up getting thrown out before trial, but
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  Speaker 7: on Monday, I guess it went before a jury in
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  Speaker 7: New York. The case is supposed to take several weeks.
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  Speaker 7: We're thinking probably five to six weeks, and it's going
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  Speaker 7: to feature testimony from people all across the live music industry.
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  Speaker 7: So there'll be people from various venues. There'll be people
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  Speaker 7: from ticket Master, there will be music artists. Kid Rock
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  Speaker 7: and someone from Mumford and Sons are both supposed to testify,
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  Speaker 7: as well as just some regular fans about how Ticketmaster
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  Speaker 7: controlling so much of the industry has sort of impacted things.
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  Speaker 5: Okay, Leah, let's hold it there for just a moment.
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  Speaker 5: We are talking with Bloomberg News anti trust reporter Leah
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  Speaker 5: and Eylan. We'll have more with Leah about the big
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  Speaker 5: Live Nation antitrust case that's just ahead.
• 12:42
  Speaker 1: I may mean more as in for June Grasso.
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  Speaker 5: You're listening to the weekend edition of Bloomberg Law.
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  Speaker 2: Listening to Bloomberg Law with June Grosso from Bloomberg Radio.
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  Speaker 5: Thanks for listening to the weekend edition of Bloomberg Law.
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  Speaker 5: I'm Amy Morris in for June Grosso, and we've been
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  Speaker 5: talking about the Department of Justice antitrust trial against the
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  Speaker 5: live entertainment giant Live Nation. Bloomberg News anti trust reporter
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  Speaker 5: Leah Island is with us. The crux of the DOJ's
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  Speaker 5: case against Live Nation, Lea, is that it has a
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  Speaker 5: monopoly on live entertainment because it owns ticket Master, which
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  Speaker 5: is the nation's largest ticket seller in the nation. And Leah,
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  Speaker 5: one of the things you mentioned is that at the
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  Speaker 5: very beginning of this, back in twenty ten, when the
• 13:34
  Speaker 5: judge allowed for this merger in the first place, even
• 13:37
  Speaker 5: then the judge said, don't threaten concert venues. If they
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  Speaker 5: don't want to use your services, you can't intimidate them.
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  Speaker 5: The judge said that from the beginning, So is that
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  Speaker 5: what they're accused of doing.
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  Speaker 7: So that is one of the allegations that the Justice
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  Speaker 7: Department is seeking to prove. The very first witness, in fact,
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  Speaker 7: was the CEO from the Barclay Center, which is a
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  Speaker 7: large concert venue in Brooklyn, New York. And they are
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  Speaker 7: one of the venues that alleged that they were sort
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  Speaker 7: of threatened by Ticketmaster Ticketmaster. They had wanted to switch
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  Speaker 7: their ticketing provider away from Ticketmaster to sea geek, which
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  Speaker 7: is another ticketing provider that it primarily does a lot
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  Speaker 7: of uh sports related.
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  Speaker 1: Events events, thank you.
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  Speaker 7: Uh, sea gek primarily does a lot of sports related
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  Speaker 7: events and uh so Barclays agreed to switch to sea
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  Speaker 7: geek and uh they played a phone call in court
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  Speaker 7: uh with the CEO of Barclays and the CEO of
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  Speaker 7: Live Nation, and the CEO of Live Nation said, if
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  Speaker 7: you switch away, it's going to be hard for us
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  Speaker 7: to keep sending you concerts. And then after they switched
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  Speaker 7: to sea Geek, the allegation is Live Nation started moving
• 14:50
  Speaker 7: concerts popular concerts to another concert venue in Queen's instead
• 14:54
  Speaker 7: of this one in Brooklyn. And so there was some
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  Speaker 7: talk about a Billie Eilish concert that has been booked
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  Speaker 7: at the Barclays Center, and all of a sudden it
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  Speaker 7: got moved to this other venue.
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  Speaker 5: So they're not just switching venues, they're actually moving acts
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  Speaker 5: from a venue that was already booked to a different
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  Speaker 5: venue that uses Ticketmaster.
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  Speaker 7: Yes, and that is the allegation that the Justice Department
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  Speaker 7: was focusing on. Live Nation maintains that this was at
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  Speaker 7: the choice of Billie Eilish's team, Barclay's, you know, the
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  Speaker 7: Barclays CEO said, you know, they had somebody check it out,
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  Speaker 7: and Billie Eilish's team said that this was in fact request.
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  Speaker 1: By ticket or by Live Nation. So it is a
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  Speaker 1: little bit disuited.
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  Speaker 7: But the Justice Department is planning to put on a
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  Speaker 7: number of other venues who allege this happened to them.
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  Speaker 7: They would look at switching to a different ticketing provider,
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  Speaker 7: and Live Nation would say, well, if you switch to
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  Speaker 7: somebody else, we're not going to be able to bring
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  Speaker 7: you the same tickets. Live Nation has argued all along
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  Speaker 7: that it's sort of under no legal obligation to do
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  Speaker 7: business elsewhere that you know, the it makes most sense
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  Speaker 7: for them, like business wise to put concerts at either
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  Speaker 7: venues it owns or venues that are using Ticketmaster, because
• 16:08
  Speaker 7: you know, when it's a vertically in a graded company,
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  Speaker 7: it's cheaper for them. And so that's actually one of
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  Speaker 7: the major issues in the trial is is this like
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  Speaker 7: a legitimate business practice or is this sort of unfair coercion?
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  Speaker 7: Does this practice of them trying to tie their contracts
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  Speaker 7: in this way make it illegal and sort of force
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  Speaker 7: pressure on these venues to use Ticketmaster instead of other options.
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  Speaker 7: The other interesting thing here is that the case is
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  Speaker 7: being brought not just by the Justice Department, but by
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  Speaker 7: a number of state attorneys general. And state attorneys general
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  Speaker 7: do have the right to sort of seek damages on
• 16:45
  Speaker 7: behalf of their citizens. So there are twenty five states
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  Speaker 7: twenty four and DC depending on how you count it,
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  Speaker 7: that are seeking damages from Ticketmaster on behalf of concert goers.
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  Speaker 7: They say that because of Ticketmaster's monopoly, ticket prices were
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  Speaker 7: increased by at least about two dollars per ticket. So
• 17:06
  Speaker 7: obviously two dollars a ticket is not that much, you know,
• 17:09
  Speaker 7: for individual ticket, but we're talking about something in excess
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  Speaker 7: of like twenty thousand concerts at thousands of concert venues
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  Speaker 7: across the country. So if you add that all up,
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  Speaker 7: we're talking about damages and the potential millions or billions
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  Speaker 7: of dollars, depending on what the jury finds.
• 17:23
  Speaker 5: You cover anti trust cases a lotea. This is your jam.
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  Speaker 5: So what criteria then do they have to meet to
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  Speaker 5: show that yes, they violated this.
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  Speaker 7: So first the jury has to find that they're a monopoly.
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  Speaker 7: That's not really that can test. There is a little
• 17:43
  Speaker 7: bit of contention here about whether they're a monopoly. It
• 17:47
  Speaker 7: depends on what venues you considered to be in the
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  Speaker 7: market versus not in the market, because the government first
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  Speaker 7: has to show that they have the power to sort
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  Speaker 7: of exert undue influence. The government says that Ticketmaster controls
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  Speaker 7: ticketing at about eighty seven percent of what they're calling
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  Speaker 7: major concert venues. So these are the venues that generally like,
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  Speaker 7: the thing that they do the most is hold music concerts. Sure,
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  Speaker 7: Ticketmaster says that that's not really the appropriate market. That
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  Speaker 7: it should include sort of all spaces that could potentially
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  Speaker 7: host a concert. So in addition to like something that
• 18:27
  Speaker 7: would like an amphitheater or an arena, it should also
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  Speaker 7: include a stadium. And so if you consider all of
• 18:33
  Speaker 7: those things stadiums, amphitheaters, arenas, their market share is a
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  Speaker 7: little bit smaller. It would be only about forty percent,
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  Speaker 7: which there isn't like a legal definition of what a
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  Speaker 7: monopoly is. But generally it's considered to be at least
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  Speaker 7: fifty to sixty percent. So that's one of the things
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  Speaker 7: the jury will have to decide. Should they be considering
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  Speaker 7: every single place that a concert should take place or
• 18:53
  Speaker 7: just sort of major concert venues. The Justice Department argues that,
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  Speaker 7: you know, there are only certain artists who are going
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  Speaker 7: to be able to fill stadium, someone like Beyonce. So
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  Speaker 7: if you are you know, up and coming artist, you're
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  Speaker 7: not really going to be playing a stadium. You're going
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  Speaker 7: to be playing some of these smaller places. And those
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  Speaker 7: are the places where Ticketmaster has a little bit more
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  Speaker 7: power because most of the business they're doing is music concerts.
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  Speaker 1: So we'd also including night clubs in this.
• 19:19
  Speaker 7: Yeah, so they sort of start They have a bunch
• 19:23
  Speaker 7: of people from sort of the music industry who are
• 19:26
  Speaker 7: taking the stand in sort of talking about this. When
• 19:28
  Speaker 7: an artist starts, you know, they tend to start in
• 19:30
  Speaker 7: smaller venues like clubs, and then they move up to amphitheaters,
• 19:34
  Speaker 7: and then they move up to arenas, and then if
• 19:36
  Speaker 7: you're very, very popular, you move up to a stadium.
• 19:38
  Speaker 7: So the Justice Department's case is sort of focused on
• 19:41
  Speaker 7: those slightly smaller ones. The clubs, the amphitheaters, the arenas.
• 19:46
  Speaker 7: These are like places that have maybe like a thousand
• 19:49
  Speaker 7: to maybe twenty thousand seats, whereas a stadium is going
• 19:52
  Speaker 7: to have like forty to fifty thousand seats. So it's
• 19:56
  Speaker 7: focused mostly on those, So we're not going to be
• 19:59
  Speaker 7: here from people like you know, Beyonce or Taylor Swift,
• 20:03
  Speaker 7: although Taylor Swift's concert agent is supposed to testify. It's
• 20:09
  Speaker 7: mostly focused on like mid level artists. So the people
• 20:13
  Speaker 7: who are definitely testifying are Kid Rock, who has been
• 20:16
  Speaker 7: very interested in this case and is close friends with
• 20:19
  Speaker 7: President Trump, and then also one of the members of
• 20:23
  Speaker 7: the Mumford and Sons band is expected to testify. So
• 20:27
  Speaker 7: like artists along that sort of caliber who do a
• 20:31
  Speaker 7: lot of shows and can talk a little bit about
• 20:33
  Speaker 7: how you know, Live nations control over concert promotion has
• 20:39
  Speaker 7: really impacted where they end up performing.
• 20:42
  Speaker 1: So what is the court then being asked to decide here?
• 20:45
  Speaker 7: So there is a jury for this portion, and the
• 20:47
  Speaker 7: jury is being asked to descide first whether Live Nation
• 20:50
  Speaker 7: is a monopoly okay, and then second what if they
• 20:53
  Speaker 7: are a monopoly, what the damage amount per ticket is.
• 20:57
  Speaker 7: So there will be some testimony from all of these
• 20:59
  Speaker 7: people about Live Nation's conduct, and then there will be
• 21:02
  Speaker 7: some testimony from experts about how Live Nations conduct impacted
• 21:07
  Speaker 7: the price of tickets. Once the jury decides that, and
• 21:11
  Speaker 7: if they decide in favor of the government, the judge
• 21:13
  Speaker 7: would then take the jury's damage number and sort of
• 21:17
  Speaker 7: decide the overall damage number. So they're deciding per ticket,
• 21:21
  Speaker 7: he's deciding the overall number, and then he will also
• 21:24
  Speaker 7: decide whether there are any additional remedies needed. So that's
• 21:27
  Speaker 7: where the potential for a breakup comes in, because the
• 21:29
  Speaker 7: government has said, you know, we allowed this merger to
• 21:32
  Speaker 7: take place in twenty ten on the condition that Live
• 21:35
  Speaker 7: Nations sort of not engage in bad conduct, and they
• 21:38
  Speaker 7: have been doing that the whole time, and so really,
• 21:40
  Speaker 7: you know, we tried to allow this to go through.
• 21:44
  Speaker 7: It hasn't worked, and so what we really need now
• 21:46
  Speaker 7: is to break up this company.
• 21:48
  Speaker 5: So this might seem like an out of the left
• 21:51
  Speaker 5: field question, but I wonder how resaler ticket resalers like
• 21:56
  Speaker 5: stub Hub would somehow be involved with this. Are they
• 21:58
  Speaker 5: completely left out of this because that the damage was
• 22:01
  Speaker 5: already done by the person who originally bought the ticket
• 22:03
  Speaker 5: through Ticketmaster.
• 22:04
  Speaker 7: So most of the yes is focused primarily on what
• 22:07
  Speaker 7: we call the primary ticket market, so that's the very
• 22:10
  Speaker 7: first sale of the ticket, because the venue itself generally
• 22:13
  Speaker 7: picks the primary ticketer i e. Who is the first
• 22:16
  Speaker 7: person selling the tickets, But they don't have a lot
• 22:18
  Speaker 7: of control over what we call the secondary ticketing market,
• 22:21
  Speaker 7: i e. When you're reselling where you decide to do that,
• 22:24
  Speaker 7: the venue doesn't itself usually get involved. So there are
• 22:30
  Speaker 7: a bunch of concerns about the secondary market. There's some
• 22:33
  Speaker 7: legislation pending in Congress that's focused on that, but this
• 22:36
  Speaker 7: case is primarily about the primary ticket.
• 22:39
  Speaker 5: How how difficult will it be for the prosecution to
• 22:45
  Speaker 5: prove its case?
• 22:47
  Speaker 7: So I mean the standard is a preponderance of the
• 22:50
  Speaker 7: evidence because this is a civil case, right, But it's interesting,
• 22:54
  Speaker 7: like anti trust case, is by the time they get
• 22:57
  Speaker 7: to this point with the Justice Department bringing it to trial,
• 23:01
  Speaker 7: very often the Justice Department wins. They there's a pretty
• 23:08
  Speaker 7: high bar for the Justice Department to file a monopolization
• 23:11
  Speaker 7: case in the first place, and then you know, it
• 23:13
  Speaker 7: has to get past the motion to dismiss, it has
• 23:16
  Speaker 7: to get past summary judgment. This one is pretty interesting
• 23:19
  Speaker 7: because it's pretty rare actually for anyst cases to go
• 23:22
  Speaker 7: before a jury. The only reason it's actually before a
• 23:26
  Speaker 7: jury is because of the damage's portion. But you know,
• 23:29
  Speaker 7: the Justice Department was very interested in getting this before
• 23:32
  Speaker 7: a jury because these are the people allegedly who have
• 23:35
  Speaker 7: been harmed by this conduct, right, the peers that they are, Yeah,
• 23:38
  Speaker 7: they are like the people who might have actually gone
• 23:40
  Speaker 7: to a concert. Live Nation a little bit earlier last
• 23:43
  Speaker 7: week actually tried to insist that if you had ever
• 23:47
  Speaker 7: bought a ticket through ticket Master, you were ineligible to
• 23:50
  Speaker 7: be on the jury, and the judge actually throughout that
• 23:52
  Speaker 7: request because he felt that they would have been impossible
• 23:55
  Speaker 7: to actually seat a jury.
• 23:57
  Speaker 1: Yeah, if one of the requirements was that you had
• 23:59
  Speaker 1: never bought.
• 24:00
  Speaker 7: A concert ticket online. Yeah, so it's entirely possible that
• 24:04
  Speaker 7: these people have used Ticketmaster's product before. But you know,
• 24:09
  Speaker 7: in order to be seated on the jury, they had
• 24:11
  Speaker 7: to insist that they could be impartial and fair, and so,
• 24:14
  Speaker 7: you know, we'll see what they say. You know, juries
• 24:18
  Speaker 7: juries much more frequently find for anti trust plaintiffs. So
• 24:23
  Speaker 7: it's interesting that Live Nation wanted to take this gamble.
• 24:27
  Speaker 1: It really is.
• 24:28
  Speaker 5: And at some point there is going to be let's say,
• 24:31
  Speaker 5: if they find in favor of the Department of Justice
• 24:34
  Speaker 5: there is a chance that Live Nation.
• 24:37
  Speaker 1: Might have to be broken up. What would that even
• 24:39
  Speaker 1: look like?
• 24:41
  Speaker 7: So the Justice Department and the state ags say that
• 24:44
  Speaker 7: in this case, they don't think it would be that
• 24:45
  Speaker 7: hard because these used to be separate companies, and in
• 24:50
  Speaker 7: their view, you know, this is now a vertically integrated company.
• 24:53
  Speaker 7: Live Nation does the concert promotions, that is, the all
• 24:57
  Speaker 7: of the logistics behind having a live music event, whereas
• 25:01
  Speaker 7: Ticketmaster is a ticketing service. It is you know, like
• 25:05
  Speaker 7: primarily a website that integrates with like websites of venues.
• 25:09
  Speaker 7: So these two things don't have to go together, and
• 25:13
  Speaker 7: therefore it would not, in their view, be necessarily that
• 25:16
  Speaker 7: difficult to separate them.
• 25:18
  Speaker 5: So it would just go back to what it was
• 25:20
  Speaker 5: before twenty ten. Live Nation and Ticketmaster. Here's your tickets
• 25:24
  Speaker 5: and here's your venue.
• 25:25
  Speaker 7: Yes, that's the idea of the Jasice Department. It would
• 25:27
  Speaker 7: separate these two things into two companies and they would
• 25:30
  Speaker 7: just go back to the way that they had done
• 25:31
  Speaker 7: business before.
• 25:32
  Speaker 5: Okay, we're going to watch and see how this develops.
• 25:34
  Speaker 5: Right along with you, Liah Thank you so much for
• 25:36
  Speaker 5: talking to it.
• 25:37
  Speaker 7: Thank you for having me.
• 25:38
  Speaker 5: Bloomberg News anti trust reporter Leah Eylan. And just ahead,
• 25:41
  Speaker 5: we're going to take a look at one major business
• 25:44
  Speaker 5: they haven't had to worry about anti trust issues at all.
• 25:46
  Speaker 5: That's the great American pastime of baseball. How did they
• 25:50
  Speaker 5: get past that? I'm Ami Morris in for Jin Grosso,
• 25:53
  Speaker 5: and this is Bloomberg.
• 26:01
  Speaker 2: You're listening to Bloomberg Law with June GROSSEO from Bloomberg Radio.
• 26:07
  Speaker 1: You're listening to.
• 26:07
  Speaker 5: The weekend edition of Bloomberg Law. I'm Amy Morris filling
• 26:10
  Speaker 5: in for June Grosso. June is off this week. Major
• 26:13
  Speaker 5: League Baseball is a massive organization and is exempt from
• 26:18
  Speaker 5: federal antitrust law. Now this week, the Supreme Court refused
• 26:21
  Speaker 5: to hear an appeal to challenge this long standing exemption.
• 26:25
  Speaker 5: Why the MLB Players Association is fighting to change it.
• 26:28
  Speaker 5: We get more on the history of this and why
• 26:30
  Speaker 5: the MLB Players Association is fighting to change it with
• 26:33
  Speaker 5: Martini Dell, co chair of Golston and Stores, Sports law
• 26:37
  Speaker 5: practice and adjunct professor at Columbia Law School. Okay, Martin,
• 26:41
  Speaker 5: thank you so much for joining us today.
• 26:43
  Speaker 6: Amy, thank you so much for having me.
• 26:46
  Speaker 5: The High Court called this exemption and aberration. It's clearly unusual.
• 26:51
  Speaker 5: Why is baseball so special?
• 26:54
  Speaker 3: Well, but spaceball is magical in many ways because it
• 27:01
  Speaker 3: stirs everyone's imagination. People from the farmlands joined baseball when
• 27:08
  Speaker 3: it first started. It became a path for immigrants to
• 27:13
  Speaker 3: become part of American society, and it's easy to understand
• 27:19
  Speaker 3: the basics, not the real strategy, but the basics. So
• 27:23
  Speaker 3: it tends to appeal to everyone. And in that way,
• 27:27
  Speaker 3: it is different than many sports, but the same as
• 27:32
  Speaker 3: many other sports, at least economically and perhaps legally, except
• 27:37
  Speaker 3: as we're about to get into.
• 27:38
  Speaker 5: Okay, let's talk about that. Why was this exemption created
• 27:42
  Speaker 5: for baseball in the first place.
• 27:44
  Speaker 3: You have to go back to nineteen twenty two when
• 27:47
  Speaker 3: the Supreme Court US Supreme Court first looked at baseball
• 27:52
  Speaker 3: and whether it was subject to the antitrust laws. Now
• 27:56
  Speaker 3: put yourself in the timeframe. In nineteen twenty two, the
• 28:00
  Speaker 3: GIS had just come back from World War One and
• 28:04
  Speaker 3: had lots of cash to spend, particularly on leisure topics.
• 28:09
  Speaker 3: You had a Supreme Court which had a very cramped
• 28:13
  Speaker 3: view of the Commerce clause, tending to restrict its availability,
• 28:20
  Speaker 3: and you had the Black Sox scandal by nineteen twenty two.
• 28:26
  Speaker 3: So you put these three things together. And the Supreme
• 28:29
  Speaker 3: Court looks at baseball in nineteen twenty two, and it
• 28:32
  Speaker 3: dealt with an ownership dispute at the time, and an
• 28:37
  Speaker 3: opinion written by none other than Oliver Wendell Holmes, one
• 28:40
  Speaker 3: of the great jurists on the Supreme Court, he decided
• 28:44
  Speaker 3: that baseball for the Court. He decided baseball was an
• 28:48
  Speaker 3: exhibition that was not involved in interstate commerce and therefore
• 28:53
  Speaker 3: was exempt from the antitrust laws because, as we know,
• 28:58
  Speaker 3: Congress gets its power to regulate from Article one, Section eight,
• 29:03
  Speaker 3: the Commerce clause. If you're not in commerce, Congress can't
• 29:07
  Speaker 3: regulate that type of activity. So that was the start
• 29:11
  Speaker 3: of the baseball exemption. I must say it made little
• 29:15
  Speaker 3: sense in nineteen twenty two, and as I'm sure we'll
• 29:18
  Speaker 3: get into, it makes even less sense one hundred and
• 29:20
  Speaker 3: four years later.
• 29:21
  Speaker 5: Well, I was going to say, maybe in nineteen twenty
• 29:24
  Speaker 5: two it wasn't interstate commerce, but today it's worldwide. It's
• 29:28
  Speaker 5: America's pastime. So how has it managed to survive any
• 29:34
  Speaker 5: challenges for these changes?
• 29:36
  Speaker 3: So what we've had is the Supreme Court has looked
• 29:39
  Speaker 3: at the baseball exemption two more times after nineteen twenty two,
• 29:43
  Speaker 3: once in nineteen fifty three in a case called Tulsen
• 29:46
  Speaker 3: against the New York Yankees, where mister Toulson was claiming
• 29:52
  Speaker 3: that something called the Baseball Reserve Clause was an anti
• 29:56
  Speaker 3: trust violation. It restricted players to particular teams and didn't
• 30:01
  Speaker 3: give them any mobility to move to another team, such
• 30:03
  Speaker 3: as we now see in free agency. And the Supreme
• 30:07
  Speaker 3: Court looked at this case six sentence decision. It was
• 30:12
  Speaker 3: called per cureum because it was by the Court no
• 30:15
  Speaker 3: individual author and in six sentences the Supreme Court said,
• 30:20
  Speaker 3: star a decisives, we had decided this thirty one years ago,
• 30:25
  Speaker 3: and therefore there's no reason to change. Congress could have
• 30:28
  Speaker 3: acted to eliminate the baseball exemption and did not do so.
• 30:34
  Speaker 3: So that's the end of it. Then in nineteen seventy
• 30:37
  Speaker 3: two we have Supreme Court looking at it again in
• 30:40
  Speaker 3: a case called Flood against Qune. This is sometimes referred
• 30:44
  Speaker 3: to as the Kurt Flood case. And what happened there
• 30:47
  Speaker 3: you now had a five to three decision by the
• 30:50
  Speaker 3: Supreme Court. The major decision was written by Justice Blackman.
• 30:57
  Speaker 3: For those who like elegance of language. The first third
• 31:01
  Speaker 3: of his decision is this great elegy to the game
• 31:04
  Speaker 3: of baseball. The second third of his decision is based
• 31:08
  Speaker 3: on Kurt Flood's outstanding statistics as a as the premier
• 31:12
  Speaker 3: center fielder of his time, and the third third of
• 31:16
  Speaker 3: his decision was, Hey, this is an aberration, but it's
• 31:21
  Speaker 3: our aberration. And while there's something to be said for consistency,
• 31:26
  Speaker 3: even when it's layered in inconsistencies, we're going to uphold
• 31:32
  Speaker 3: the baseball exemption. Congress hasn't stepped in. There's been what
• 31:37
  Speaker 3: the Court called positive inaction, and therefore baseball exemption stands
• 31:44
  Speaker 3: sounds quite Ralph Waldo Emersonian in its scope.
• 31:49
  Speaker 5: So it sounds like also because the Supreme Court opted
• 31:52
  Speaker 5: not to take up this case, that what did you
• 31:55
  Speaker 5: call it? The at the inaction positive inaction. Positive inaction
• 32:01
  Speaker 5: remains correct.
• 32:04
  Speaker 3: And since nineteen seventy two, we've seen a whole bunch
• 32:07
  Speaker 3: of developments. We've had on the congressional front. Congress in
• 32:12
  Speaker 3: nineteen because it's nineteen ninety seven or nineteen ninety eight,
• 32:16
  Speaker 3: passed something called the Kurt Flood Act. Unfortunately, Kurt Flood
• 32:20
  Speaker 3: had passed away before Congress enacted this and President Clinton
• 32:24
  Speaker 3: signed it into law that said that baseball players for
• 32:30
  Speaker 3: Major League Baseball had the right to sue under the
• 32:34
  Speaker 3: anti trust laws. Of course, by that time it didn't
• 32:37
  Speaker 3: matter much because baseball had developed a union, the Major
• 32:42
  Speaker 3: League Baseball Players Union and the Major League Baseball players
• 32:47
  Speaker 3: major League Baseball owners had negotiated a collective bargaining agreement.
• 32:52
  Speaker 6: Where you have a collective.
• 32:53
  Speaker 3: Bargaining agreement, the labor law takes precedence over the anti
• 32:57
  Speaker 3: trust laws, and so there is no such thing as
• 33:01
  Speaker 3: an antitrust violation for player disputes as long as there
• 33:05
  Speaker 3: is a collective bargaining relationship. So it was a stop
• 33:10
  Speaker 3: to unfortunately at that time the deceased mister Flood. But
• 33:17
  Speaker 3: it didn't matter much. You had a whole bunch of
• 33:20
  Speaker 3: lower court cases coming up challenging the scope of the
• 33:24
  Speaker 3: baseball exemption. Why, because this exemption did not apply to
• 33:28
  Speaker 3: any other sport. The Supreme Court and all lower courts
• 33:32
  Speaker 3: it held foot professional football, professional hockey, professional basketball, theatrical
• 33:39
  Speaker 3: exhibitions you named the type of entertainment form the Supreme
• 33:45
  Speaker 3: Court and the lower courts have held their subject to
• 33:47
  Speaker 3: the antitrust laws, not so for the great game of baseball.
• 33:51
  Speaker 3: So lower courts tried to limit the scope, and ultimately
• 33:57
  Speaker 3: they found that the circuit courts of a peaces did
• 34:01
  Speaker 3: not agree and held that baseball is subject to the
• 34:06
  Speaker 3: antitrust is not subject to the anti trust laws because
• 34:09
  Speaker 3: of the exemption.
• 34:11
  Speaker 5: So in this case, if this appeal had been successful,
• 34:15
  Speaker 5: how would that change major League Baseball, how we experience
• 34:19
  Speaker 5: it as fans, how it actually is run as an organization.
• 34:24
  Speaker 3: I think the answer is not much. So what we're
• 34:28
  Speaker 3: talking about is the Congray Harrow's decision that where the
• 34:32
  Speaker 3: Supreme Court last week last week earlier this week sorry
• 34:36
  Speaker 3: denied a petition for rid of cerchiary. What that affects
• 34:40
  Speaker 3: is not major League Baseball, but the minor leagues. This
• 34:45
  Speaker 3: involved Puerto Rican baseball leagues and were they subject to
• 34:50
  Speaker 3: the same baseball exemption where the players they are subject
• 34:53
  Speaker 3: to the same baseball exemption. The first Circuit Court of
• 34:57
  Speaker 3: Appeals held the baseball exemption apply and therefore it seemed
• 35:01
  Speaker 3: to expand it beyond the scope of what the Supreme
• 35:05
  Speaker 3: Court had held three times applied to Major League baseball,
• 35:09
  Speaker 3: So the effects would be two minor leagues, non sanctioned leagues.
• 35:16
  Speaker 3: And as I'm sure you're going to ask me, the
• 35:18
  Speaker 3: NCAA right exactly.
• 35:20
  Speaker 5: I was stopping other organizations like the NCAA because I
• 35:23
  Speaker 5: keep thinking about things like name and image and likeness
• 35:27
  Speaker 5: and the portal and how students are now able to
• 35:30
  Speaker 5: lobby for more money, which was unheard of back in
• 35:34
  Speaker 5: my day. So what's stopping other organizations like the NCAA
• 35:38
  Speaker 5: from lobbying for this type of an exemption?
• 35:41
  Speaker 6: So great question, and the answer is they are lobbying
• 35:44
  Speaker 6: for exemption.
• 35:47
  Speaker 3: I can't tell you every day, but the NCAA has
• 35:51
  Speaker 3: lobbyists who are going to Congress on a regular basis
• 35:55
  Speaker 3: and claiming that the NCAA should be exempt, at least
• 35:59
  Speaker 3: in some of its activities from the scope of the
• 36:01
  Speaker 3: anti trust laws. The principal reasons given by the NCAA
• 36:06
  Speaker 3: are one money and two money. And the reason for
• 36:11
  Speaker 3: this is anti trust laws are so anti trust lawsuits
• 36:15
  Speaker 3: are so expensive and take so much time and divert
• 36:19
  Speaker 3: energy that they in fact divert attention from the scope
• 36:24
  Speaker 3: of the activities that the parties want to engage in
• 36:28
  Speaker 3: and take on a life of their own.
• 36:31
  Speaker 1: How does that not apply to baseball?
• 36:33
  Speaker 6: Though it would but for these three Supreme Court.
• 36:37
  Speaker 1: Cans Okay, okay, okay.
• 36:40
  Speaker 5: So what happens now there have been challenges, they get
• 36:44
  Speaker 5: shot down, or they're not hurt at all. Is this
• 36:48
  Speaker 5: just the way it is? Baseball has this antitrust exemption.
• 36:53
  Speaker 6: So the answer is.
• 36:56
  Speaker 3: Yes and no. That's my legal and lawyerly type answer. Yes,
• 37:03
  Speaker 3: because we have three Supreme Court cases which uphold the
• 37:06
  Speaker 3: baseball exemption. Lower courts can't change that. What can change
• 37:11
  Speaker 3: that is Congress. If Congress wanted to jump into the fray,
• 37:16
  Speaker 3: and that's in effect why the NCAA is lobby in
• 37:18
  Speaker 3: Congress now it can create exemptions to the anti trust laws.
• 37:24
  Speaker 3: The antitrust laws are congressional laws, they're not constitutional laws,
• 37:29
  Speaker 3: and they can be changed by Congress or modified by Congress.
• 37:34
  Speaker 3: So that's one avenue. Another avenue would be if the
• 37:38
  Speaker 3: Supreme Court weighed.
• 37:40
  Speaker 6: In again, which doesn't look likely.
• 37:44
  Speaker 3: It's had ample opportunity over the last fifty four years
• 37:49
  Speaker 3: since the floodcase was decided and it's chosen not to
• 37:52
  Speaker 3: do so. So those are the two areas. A third
• 37:56
  Speaker 3: area may be private parties. If, for instance, Congrey Harrows
• 38:03
  Speaker 3: decided to develop a collective bargaining relationship with its players
• 38:10
  Speaker 3: and the players would unionize and then perhaps be subject
• 38:13
  Speaker 3: to the scope of the National Labor Relations Act, they
• 38:17
  Speaker 3: could then bargain without the sort of damocles of an
• 38:20
  Speaker 3: antitrust suit hanging over their heads because the anti trust
• 38:24
  Speaker 3: laws would be superseded by the collective bargaining relationship.
• 38:28
  Speaker 1: Marty, we're going to leave it there. Thank you so
• 38:30
  Speaker 1: much for taking the time with us. This is fascinating, Amy.
• 38:33
  Speaker 6: Thank you so much for having me. I've really enjoyed myself.
• 38:36
  Speaker 5: Marty Adell is co chair of Gulston and Stores Sports
• 38:39
  Speaker 5: Law Practice. And that does it for this edition of
• 38:42
  Speaker 5: Bloomberg Law. Subscribed to the Bloomberg Law podcast on Apple, Spotify,
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• 38:48
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• 38:52
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