The landmark antitrust trial that ended Wednesday with a jury finding Live Nation and Ticketmaster liable for operating as a monopoly took years to come together. The Department of Justice began investigating the live entertainment industry giant in 2022. Two years later, in May 2024, the DOJ, along with more than 40 co-plaintiff states, filed their lawsuit. And last month, the case finally went to trial. But for all the work that occurred over those four years, the trial lawyers that wound up leading the case and securing this historic verdict had little more than a week to prepare.
“I hoped that we would get at least two weeks, if not longer,” Jeffrey Kessler, the antitrust expert who took over from the federal government one week into the trial, tells Rolling Stone. “A month would be ideal. We ended up with eight days! But we made it work.”
Kessler, a partner and co-executive chairman at the law firm Winston and Strawn, is something of an antitrust rock star. Specializing in entertainment and sports, he’s been involved in major trials involving free agency in the NFL, equal pay for the U.S. women’s national soccer team, and the Supreme Court decision that paved the way for college athletes to profit off of their name, image, and likeness.
He and his team were essentially asked to pinch hit in the Live Nation trial after the Department of Justice unexpectedly settled with the company in early March. While seven of the original co-plaintiff states signed onto the DOJ’s proposed terms, 33 others, plus Washington D.C., chose to continue the case, hiring Kessler as lead. (In a statement, Live Nation said that the jury’s verdict “is not the last word on this matter. Pending motions will determine whether the liability and damages rulings stand.” The company confirmed that they will appeal the verdict, meaning the case could continue for several more years.)
“I don’t think there’s another case in the history of antitrust where a week in, a new lead trial counsel was asked to come in,” Kessler says, laughing. “We had to take on an unprecedented challenge, but the states were great. We formed this seamless team. We had a week, basically, to get up to speed, and somehow we did it and put it all together. I couldn’t be more satisfied with the outcome.”
In his first major interview about the trial, Kessler offers an in-depth breakdown of what it was like taking charge on such short notice and how he and the states put together their winning case. Speaking the morning after the verdict, he still sounded thrilled: “There are lots of ways we could have had less than a total victory,” he says, “but this was a total victory.”
Tell me about yesterday. Were you expecting a verdict would come in, or did you think it would take longer?
We had been anticipating a verdict for several days and I thought yesterday was likely. The jury was meticulous. They went through every instruction. I think they sent out 20 different notes asking for materials and questions. They really did an extraordinary job, and I think it bodes well for how even a complicated antitrust monopolization case can be presented to a civil jury and get the right result.
When they were sending notes and asking questions, were there any tea leaves you could read in those requests?
It was a very complicated verdict form. There were many, many questions for them to answer, and we could see that they were progressing through the form each day. You could say, “This question from the jury relates to this part of the form, this question relates to this part.” So we were getting encouraged, because for us to prevail on everything we needed to move through each of the steps of the form. If we lost at an earlier step, they wouldn’t necessarily progress to everything.
Tell me about getting the call from the state AGs to take over the case.
So the states got wind of rumors, I would say, a week or so before the trial started, that maybe the DOJ was progressing to a separate settlement. That became very clear when [it turned out] not even the trial team for the DOJ was involved with, or informed about, [the settlement]. It was directed from elsewhere in the Department of Justice and the administration. And [the states] became concerned because they knew that they had, for very good reason, not duplicated a lead trial structure to go with DOJ, because the claims were overlapping. They were really dependent on DOJ to carry this case forward.
And by the way, this was the first civil government monopolization case to a jury ever. Every prior government monopolization case has been brought in a judge trial. So this had unique challenges, as well. So, I got a call from a committee of the states — one of the leaders was the New York Attorney General’s Office, another one was D.C., Tennessee was very involved, California, Texas — and that committee said, “Is this something that you’d be interested in doing?” It was a unique challenge. I’ve spent my whole life as a antitrust trial lawyer, and this sounded right up our alley! So I said, “Yes.” Fortunately, we had a gap in our schedules where we could do it. I put together this great team from our firm of experienced antitrust trial lawyers, so we had a very deep bench. And then we formed this joint team with the states. Really, it was 24/7 after that. We had to work round the clock to get ready and then go with the trial in mid-stream.
Had you been following the case even before the committee contacted you?
Yeah, but just in very broad strokes. I follow major antitrust cases because that’s my profession. So I knew a little bit about the [pre-trial] rulings, I knew what the claims were. But did I know these facts very well? No! [Laughs.] The legal issues were not very challenging to us, because this is what we do. I just did a huge monopolization case against NASCAR. It actually had very similar legal issues. But every case, it’s all about the record, the facts, the depositions, the witness testimony, the documents. That was very, very challenging to be able to get on top of.
Take me through those eight days. How did you build your case?
We had two immediate challenges. One, we had to really learn the fact record, and for that, it was a divide and conquer [strategy]. I divided up with my partners different key witnesses to prepare for, both an examination and cross-examination. And we [figured out] which [witnesses] the state AGs would continue to handle, and which we would handle.
Then at the same time, we had to decide, were we going to do the exact case the DOJ prepared, or were we going to do a slightly different case? And what we concluded is that we were going to do a significant portion of what DOJ had prepared, but not everything. So we had to sort through all of that and decide what was the story and the evidence we needed to present. What did we need to win? How could we keep it understandable to the jury [and] not make it too complex? What was going to be the most compelling?
Jeffrey Kessler arrives at federal court in 2025 in Oakland
Noah Berger/AP
It was a combination triage and long-term health care. The triage was, we had to make sure we had the first week we were back [in court] ready to go. Who’s going to do this witness, which witnesses are we going to call? The long-term health care is, what are we going to do three, four weeks after that? It was all going on at once. And then I had a separate team working with me to do my closing [argument]. Because you don’t get any time to prepare for that. The trial ends and you do the closing the next day. That had to be put together the whole time as we were going.
What were the biggest changes you made with the case you presented, versus what the DOJ had prepped?
We eliminated some witnesses that we thought were unnecessary, or maybe it wasn’t clear how much benefit we would get from them compared to what we already had. We had to build up our story and evidence about what I will call the “large amphitheaters market” part of the case, because we thought maybe not enough focus had been put on that.
And we quickly decided that we were going to tell a lot of this story through the documents. Live Nation and Ticketmaster had an unfiltered way of communicating with each other that starkly revealed what we thought was their monopolistic intent. And we were going to make sure that those documents all came into evidence because they were really easy for the jury to understand. If you read my closing, a lot of it was focused on what those documents revealed. Even a document where, at one point, [someone] left a voicemail telling another person to stop writing bad documents! [Laughs.] Which was great, because the jury could infer from that there would be even more if they weren’t self-policing.
The big piece of evidence was those chat logs between the ticketing executives where they talk about pushing prices for ancillary fees. What was it like coming across those exchanges for the first time?
I’d I heard about them, but to read the documents… I remember talking with Jeanifer Parsigian, who was my number two in the case, and I basically said, “Oh my, God, did you read these Slack messages?” [Laughs]. And we decided one of the first witnesses we would call that week was [Ben] Baker [one of the people involved in the chats]. Because we wanted to get that in front of the jury as soon as possible. Because the point was: It wasn’t just some low-level person, who could be like, “Oh, I’m immature.” No, this was somebody who was promoted to a senior position! And it wasn’t just a stray comment. It went back and forth about exploitive pricing in the [amphitheater] market, which was one of our claims! So it was directly our point.
You also put Live Nation CEO Michael Rapino on the stand that first week. Tell me about preparing for what was arguably the case’s star witness.
That could have gone two ways, and frankly the way it came out worked really well for us. I had him locked down on all sorts of documents and admissions, and he could have been contentious and difficult and resisted. That would have made more of a show. But they prepared him to do a very different approach, which was to basically give me everything in the documents, all the admissions, and present himself on his best behavior, if you will. Some people asked me afterwards if I was disappointed because it didn’t have this A Few Good Men-type confrontation. And I said, “No!” I was perfectly happy with what happened, because what we got were all of these admissions that I knew were going to prove my case in closing. And that’s exactly what happened.
Was there any witness that Live Nation’s lawyers called where you thought, “They’re making their case really well.”
These are good lawyers on the other side and they did their best to present their case. One of their interesting strategies is that they played a lot of videos of different venue operators who they deposed basically to say, “We like Ticketmaster. We like Live Nation. They’ve done a good job for us.” And of course, in this industry, you have so many venues, and people have so many ties to Live Nation, it’s not surprising that they would find some witnesses who would say they were happy. So, we didn’t know exactly how the jury would react to that. And it was video [depositions], so it wasn’t like there was anything we could do to further cross-examine them.
But, in the end, I don’t think it moved the jury very much. I think they just viewed it as, these are some individual witnesses, and a lot of them who testified had all sorts of financial ties. I think they brought one witness in, who they thought was gonna be great for them, talk about how great Ticketmaster was. And then you found out that they paid for him to travel to [Bruce] Springsteen concerts all over the world. And I think the jury was saying, “OK, I’d be in favor of you too if you took me to see the Boss everywhere!”
Looking at the history of antitrust in this country, is there anything comparable in scale and size?
We’ll have to see what kind of remedies are granted. I think it has the potential to be really groundbreaking here. But there are certainly other big cases going on now too, like the case against Google. But for the live entertainment and ticketing world, this case is going to make a big difference. There are a lot of venues, fans, competitors, and artists who I think are going to be benefited by a positive change.
Since we are talking about concerts — have you been to any good shows lately, or have anything coming up that you’re excited about?
I’m going to see the Boss at Madison Square Garden very soon!
Have you seen him before?
I have. I’m a Springsteen fan, too, so I can relate with that particular witness. This will probably be my 10th concert, but over a lot of years. The first one was in ’84, and he did one of his four-hour marathons at — I think it was the Brendan Byrne Arena in New Jersey, which doesn’t exist anymore. That was my first one and I became a huge fan from that moment on.
What can you tell me about remedies and what comes next?
I will be involved, but I can’t tell you much about it. Other than the fact that the court has told the parties to meet and confer — including with the DOJ — because [the judge] wants us to propose a schedule for when our remedies hearing will be in relation to what’s called the Tunney Act review of the settlement that the DOJ already did. Those issues are related to each other. But I can’t give you anything on what the states are going to ask for, because that’s up to my clients. They’ll be working with experts to put that together. It’s definitely something that’s going to be worked on over the next several months. There’s not going to be a hearing a month from now. It will be a number of months before that remedies hearing takes place.
