Pro Market, June 2024
The Justice Department, together with 30 states, filed suit in late May against Live Nation-Ticketmaster for abusing its dominant position in the live entertainment business. For those who have followed the company since it was allowed to merge in 2010, its behavior comes as no surprise. What might surprise is the bold nature of the DOJ’s challenge and its proposed remedy. The challenge revisits a merger the agency previously approved, subject only to some ineffective conduct remedies. Too often in the past, the antitrust agencies (the DOJ Antitrust Division and Federal Trade Commission) have not looked back, much less taken action, against consummated mergers that have proven to be anticompetitive. Rather, they have averted their eyes and moved on.
This action highlights the fact that decades of lax enforcement against mergers and dominant firms have left countless industries excessively concentrated and uncompetitive. Leaving these firms unexamined and untouched results in continued harm to consumers and competition until at some future date possible entry or technological change reins in their market power. The DOJ’s lawsuit also signals a new and bold willingness by the current leadership of the antitrust agencies to acknowledge past enforcement failures and revisit consummated mergers if hindsight reveals them to have been harmfully anticompetitive.
