The Antitrust Lawyer Who Parachuted Into Trial and Beat Live Nation and Ticketmaster for 33 States

John is joined by Jeffrey L. Kessler, Co-Executive Chairman of Winston & Strawn LLP. They discuss the remarkable antitrust trial Jeff won involving Live Nation and Ticketmaster.

In that case, the Department of Justice, 33 states, and the District of Columbia sued Live Nation and Ticketmaster, only for the DOJ to settle and withdraw from the case one week into the trial. The remaining states continued litigating and brought in Jeff as their new lead trial lawyer midway through the proceedings, an unprecedented action in major antitrust litigation. This required Jeff’s team to enter a complex jury trial with almost no preparation time, review a massive evidentiary record with the assistance of AI, coordinate with dozens of state attorneys general, and quickly reorganize witness presentations and trial themes.

The case centered on allegations that Live Nation and Ticketmaster unlawfully maintained monopoly power through long-term exclusive agreements, threats to withhold concert talent from venues using rival ticketing companies, and other conduct designed to block competition in ticket sales. The plaintiffs highlighted damaging internal company documents, including references to “boiling the frogs,” “digging a moat around the castle,” and using a “velvet hammer” to pressure venues, all of which became powerful evidence supporting claims of anti-competitive intent. The plaintiffs also relied on economic testimony and evidence showing that the companies internally acknowledged serious service and quality problems while publicly claiming their products were superior.

Jeff’s trial strategy included simplifying complicated antitrust theories for jurors, narrowing claims, reducing witnesses, and using AI tools to rapidly analyze deposition transcripts and evidence. After a lengthy trial and four days of jury deliberations, the plaintiffs secured a major verdict against Live Nation and Ticketmaster, with further proceedings still pending regarding damages and possible structural remedies, including the separation of Ticketmaster from Live Nation.

Podcast Link: Law-disrupted.fm
Host: John B. Quinn 
Producer: Alexis Hyde
Music and Editing by: Alexander Rossi

Transcript

Note: This transcript is generated from a recorded conversation and may contain errors or omissions. It has been edited for clarity but may not fully capture the original intent or context. For accurate interpretation, please refer to the original audio. 

JOHN QUINN: This is John Quinn. This is Law, disrupted, and today we're gonna be talking about what I think is a super interesting case and super interesting circumstances in which Jeffrey Kessler, who we're talking to, is a partner with the Winston & Strawn firm. I assume you're in the Chicago office, Jeff? 

JEFFREY KESSLER: No, I'm in the New York office.

JOHN QUINN: Oh, okay. I assumed wrong. In the New York office of the wonderful law firm of Winston & Strawn, who we litigate with and against all the time. You know, Live Nation and Ticketmaster have a long history of engagement with the antitrust laws. I think they've been operating under a consent decree that goes back to 2010.

There's been a whole raft over the years of private antitrust litigation against those entities, including one our firm is prosecuting now, where we have a class action of, a class action actually certified against Live Nation and Ticketmaster. But this remarkable case began with a case brought by the United States Department of Justice, and I think originally maybe as many as forty states.

And to a lot of people's surprise, one week into the jury trial, the government, the United States Department of Justice, settled with the defendants, leaving the states there with a decision about whether they wanted to go forward without DOJ's involvement. And more remarkably, in the middle of the trial, they decided to substitute a new trial lawyer, and that's Jeff Kessler, who we're talking to today.

Jeff, have you ever substituted in the middle of a major antitrust trial like that? 

JEFFREY KESSLER: So I think the answer is nobody has ever substituted into a major antitrust case one week into a jury trial. It is a unicorn situation. 

JOHN QUINN: A unicorn situation and remarkably or maybe not remarkably, I understand there were some pretty damaging documents, and I'm sure you're a fantastic trial lawyer.

You won. Right. Finally, after all these years, a chink in the wall in private antitrust litigation against, Ticketmaster and Live Nation. Let me, let me begin, Jeff, by asking you, how did you originally get involved? Who contacted you? What was, you know, the background to your engagement?

JEFFREY KESSLER: Right. So several weeks before the trial began, the states started to hear rumors that the Department of Justice might do a settlement without them and there was a committee of states that was sort of the organizing group for the states led by  the New York AG, the DC Circuit, Tennessee, California, Texas.

There were a number of states who were very involved. Notice, by the way, this is not a partisan case. You had states of all political persuasion agreed that Live Nation and Ticketmaster were an antitrust problem. And that committee contacted me and said, "Hey, this could happen, and we don't really have among our state teams anyone who's an experienced, you know, first chair, you know, lead litigation counsel for a major antitrust case who's ready to take this on."

Because we were relying on the Department of Justice to do that. And they said, "If this happened, could you and your team do this?" And so, as I said, it's a unicorn situation. I thought about it, and I said, "Gee, I'd really like to have, like, two months to prepare, and learn the facts and the witnesses and, and everything else we need to know to do that."

But it was clear I was not gonna get that time. And I said, "Let's try to get as much time as we can, but, if this happens and, you know, and you decide to retain us, we'll do it." And, thereafter, they had several other meetings and eventually decided the week before the trial started, that we would be engaged just in case.

And so, the jury was selected. We weren't part of that, and it went that whole first week, and then it, it comes to be, Friday night maybe of that first week or Saturday that they get word that a settlement has been reached. It was sent to the court Sunday night, and that the DOJ was exiting the case.

And so, you know, almost immediately the judge wants to know, "Well, what do we do now?" You know, and he was very upset because they had... He had asked what the settlement posture was and where things were and had no advance notice of this, so the judge was quite unhappy, with the situation, and then, the initial thing we did is we first said, "Well, let's move for a mistrial." 

JOHN QUINN: Okay. Before you get into that, I just, as a trial lawyer, you get this phone call. It's a major case. I'm sure you have other things on your docket that you're working on. Was it a difficult decision to make to say, "Okay, I'll do this"? I mean, I would think you get that call in the pit of your stomach, you're thinking on the one hand you think, "This is a great opportunity, it's a great platform, I'd love to do it."

On the other hand, "These are extraordinary circumstances. Is, am I and my team really up to this?" Did you have that kind of conversation with yourself? 

JEFFREY KESSLER: Yes and no, but I quickly convinced myself that this was something we should do. I mean, it happened that I had an opening in my schedule, so it wasn't like I...

You know, if I had another trial scheduled, obviously that wasn't gonna work. So I knew I had an opening. And the rush as a trial lawyer of doing this case, sort of overwhelmed everything else, right? And I said, "Yeah, it's gonna be hard, it's gonna be difficult." And that's why I mentioned our thought was we'll move for a mistrial and say, "Let's start another trial a month from now" so that then we'd have a month to prepare, right?

You know, that would- 

JOHN QUINN: Yeah ... 

JEFFREY KESSLER: That would give us, and so we, we first moved for a mistrial, and the court was not happy with that 'cause the judge felt like we empowered this jury, they've already done this, and he really, you know, and there wasn't a lot... Again, because this has never happened, there's not a lot of precedent for whether or not a mistrial should be granted.

And then, as that first kind of, like, week went on, we came to the conclusion with the state, you know we can probably do this. Like, you know, we started to, like, get our hands around the record and the witnesses for next week and where things were, and we said, You know we think we actually like the jury, like based on what was done so far, and knew the judge did not wanna grant the mistrial.

So we showed up that Friday at the end of the first week and said, "Uh, Your Honor, we can do this. We will, we will go forward." 

JOHN QUINN: No delay? 

JEFFREY KESSLER: We... No, we... Well, we lost a week of trial, right? He took, in other words, from, from the Friday that there was a settlement, he told the jury to go home that week while he considered what to do with the mistrial motion.

JOHN QUINN: Right. 

JEFFREY KESSLER: And so, so there was a week off for the jury. 

JOHN QUINN: Right. 

JEFFREY KESSLER: But they were told that they should come back the following Monday unless they were told not to. 

JOHN QUINN: Yeah. This case must have had a voluminous record. At what point do you actually start to read the record, was it that Friday? 

JEFFREY KESSLER: Well, we'd started even beforehand because remember we retained...

We had started to get ready the week before the trial started. So we were already in the process of both monitoring what was happening at the trial and starting to read, you know, you know, the DOJ was willing to share with us, you know, they had witness summaries, there were experts in process. There were things that we already started to become involved in.

And frankly, this is one of the great uses of AI, because we were able to, for example, take all these depositions, load them all into what's called Harvey, which is an AI platform, and have them all summarized for different points instantaneously, right? You know, we were able to go through it and say, "Okay..."

Now, it wasn't gonna be perfect, but it was a great way to start learning the case. It's like you go through and say, "Okay, you know, which witnesses spoke about this?" Right. And what did they say on it, right? And it started like taking these, you know, very voluminous materials and sorting it out for us in ways that we could start learning about it.

We obviously put a very big team together. 

JOHN QUINN: How big was your team? 

JEFFREY KESSLER: So we had, in addition to myself, four other partners. So we had five partners on the case, maybe s- partially a sixth. So it was-- we had... So we had six partners, five working full-time and the sixth worked part-time. We probably had, I'm gonna say ten associates on the case.

And we had, two paralegals. So we had, you know, about sixteen to eighteen, Winston team members who we divided things up. We said, "Okay. You're gonna take this, you're gonna take this, you're gonna take this," and we made teams to work on all that. 

JOHN QUINN: Yeah, so it's kind of a zone defense rather than man-to-man, and was by sub- you divide it up by subject matter rather than by witness.

JEFFREY KESSLER: Yes, that's right. And the way we had to do this also is it's like anything else. You have to go, "What's next?" Like, the first thing we had to decide is what witnesses that we call Monday, right? 

JOHN QUINN: I just wanna get this clear. It sounds like you started on this a week before the trial started. Right.

There was one week of trial. There was one week off. So you had, you had about two weeks, not three weeks off.

JEFFREY KESSLER: Right. That's right. You had about two weeks. 

JOHN QUINN: And, so you substitute ... You associate in, and you show up on Monday- 

JEFFREY KESSLER: Right ... 

JOHN QUINN: And you call a witness. 

JEFFREY KESSLER: That's correct. 

JOHN QUINN: All right. Now, were you...

The jury hadn't seen you before. They'd, they...,was there some introduction or explanation? 

JEFFREY KESSLER: Yes. The judge said since the others had been introduced before their opening argument, because he let me get up and introduce my team in court and say that we're gonna now be representing what were 34 states, including the District of Columbia, so 33 states and the District of Columbia, who were continuing.

JOHN QUINN: The jury wasn't given any explanation as to why- 

JEFFREY KESSLER: No. But they were told that the Department of Justice settled. 

JOHN QUINN: Right. 

JEFFREY KESSLER: So they knew that and that they should, and that it does no relevance to them in the case, but they should know the Department of Justice settled, so I'm sure they surmised that it had to do with that.

And also, I became co-lead counsel with an attorney from the New York AG office because the AGs were gonna continue, you know, to be involved as well. Like, you know, it wasn't like we were replacing them as counsel. We were gonna take on the, you know, a strong lead role. 

JOHN QUINN: So formally speaking, were you associated then as counsel, co-counsel with all the states?

Is that how it…

JEFFREY KESSLER: Right. Well, yeah, yes. Formally, we appeared for the state of New York, but because that was the easiest way to get it done contractually, but we were actually, you know, representing the interests as all the states are working together. 

JOHN QUINN: Right. 

JEFFREY KESSLER: And, like, you know, I became co-lead counsel, and we continued to have the states handle some of the witnesses, you know, and work with us, you know, collaboratively, which also made it more doable because they had been working to prepare.

JOHN QUINN: They had the history. 

JEFFREY KESSLER: That's right. 

JOHN QUINN: Now, now, as this case went to trial, there were claims under the Sherman Act, Section 1- Right ... unlawful agreements in restraint of trade, and Section 2, unlawful maintenance of monopoly power and attempted monopolization. 

JEFFREY KESSLER: Right. 

JOHN QUINN: And in the trial, the Section 1 claim was dropped.

I gather the judge encouraged that. Can you tell us about that, what the thinking was on that? 

JEFFREY KESSLER: So, it was a little more than that. So the judge granted summary judgment against some of the claims And we, but there still was a, one tying claim that remained, so it wasn't like it was completely dropped.

But most of the claims were Section 2 monopolization claims. So it really wasn't a decision. We did decide to drop a Section 1 claim that remained that was duplicative, we thought, of the Section 2 claims, and we just concluded that it was just gonna make it more complicated for the jury, and that frankly, one of the big decisions we made when we came in, when we reviewed it, we thought that the government's case was a little complex, and it was gonna be, difficult for the jury to follow. And we said, "How can we, you know, streamline, simplify, reduce our story arc, you know, reduce the number of witnesses?"

There were too many witnesses on the witness list. 

JOHN QUINN: Right. 

JEFFREY KESSLER: And really kind of focus as to what do we really need to be sufficient to win this case, and that was a lot of what we were doing, was cutting. 

JOHN QUINN: That's the hardest part, as any trial lawyer knows. 

JEFFREY KESSLER: And, we had a meeting with the Department of Justice outgoing team and, you know, reviewing, said, "Oh, we're gonna cut this one and that."

And they tried to make some appeals saying, "Oh, here's why we would call that one," and all that. And we, and we had to make judgments as to what we would actually do or not. 

JOHN QUINN: Yeah. Live Nation and Ticketmaster, of course, they say they have lots of competition out there, and that they're successful just because they're better.

They're better at what they do, and that they- 

JEFFREY KESSLER: Right ... 

JOHN QUINN: They need these exclusive arrangements because they have to make all these payments to venues and artists and the like. Right. I assume those are the kinds of issues you were facing. I mean, how, how did you address the issue that we have lots of competition, we're just better?

JEFFREY KESSLER: So there were a lot of different issues in the case, but what really, I think, sort of framed the case for us is that they had a lot of really damaging documents in the case 

JOHN QUINN: Can you give us an example? 

JEFFREY KESSLER: So, for example, one of their documents was really the, the boil the frogs document, and that was a discussion- 

JOHN QUINN: I like the sound of that

JEFFREY KESSLER: That was a discussion about how they were going to secretly raise-- not secretly, but without announcing to the venues or emphasizing, they were going to add additional ticketing fees for a type of new product they would have coming out called Platinum Pricing, where you could have variable pricing for the tickets.

And that their theory was that by the time the venues recognized what was happening to them, the frogs would already be dead and boiled. Yeah. And, they referred to it, "Well, we'll boil the frogs, and we're gonna get this advantage and be able to keep all this money for ourselves," in terms of that.

And so that was one. They had another one called the Velvet Hammer document, which is-- which spoke about how they would use the power of withholding their talents to force the venues into doing what they want, and that they would carry this out with a velvet hammer. 

JOHN QUINN: I'm sure at our firm, we talk to clients a lot about email hygiene, about, you know, whether it's on WhatsApp or whatever.

JEFFREY KESSLER: Right. 

JOHN QUINN: You really have to be careful about the kinds of things you say because we say, quote-unquote, "They're subject to misinterpretation." 

JEFFREY KESSLER: We even had one of those where someone wrote to somebody else. We don't know. They, left a voice message, and it was when they had this service that the voice message records it. And the reason they did a voice message is because they were trying to, quote, "Keep email hygiene." And the voice message was, "You can't write these members, these, these, these memos about, you know, about driving our competitors out of business and getting, you know, a monopolistic position at all."

And then we had the document, right? So it made it even worse because I was able to say to the jury, "You can imagine how many more of these documents we would've had if they weren't policing it." 

JOHN QUINN: Right. We had a case once where the crucial witness had run a program on his laptop called Evidence Eliminator.

Honestly, that was the name of the program. Right, and the, and that came into evidence that they used, Evidence Eliminator. 

JEFFREY KESSLER: Yeah. And they had some documents. They got a lot of public attention, you know, talking about ripping off the consumers, and they're so stupid. And just so again, so all those documents sort of framed their anti-competitive intent, right?

All those documents sort of framed their intent to use their monopoly power in a way that was gonna benefit themselves and, you know, and sort of, you know, pointed out the truth of what was there. So that was a lot of help in terms of making these facts understandable to the jury. But we also had a lot of other just normal...

We had really good economic evidence, about what they did, by one of our experts. We really, they marched out three different economic experts who I thought really did very poorly on cross-examination, and didn't help their cause because of that. One of the issues was what impact the monopolization had on product quality.

And they would make all these arguments about, "Oh, we have the best product, and everyone loves us, and we're great." And then we have all these internal documents about these huge quality problems that they had. Right. So again, there was a whole credibility gap between the story they wanted to tell and what their own documents showed, in terms of that.

JOHN QUINN: Now, the jury was asked to decide damages on a per ticket basis. 

JEFFREY KESSLER: Yes. That decision was made before we became involved, and it actually worked out very well because there was this real dispute that the jury would not be easily able to ascertain. So the judge said, "I will do this separately at the remedies hearing," which is how many tickets were at issue for each of the 34 jurisdictions in which theaters in which years.

And he said, "Since it's-- the damages were the same overcharge, we'll just have the jury decide if there was an overcharge on a per ticket basis and what it was, and then we can do the math through submissions there." Which frankly, I'm glad that decision was made, but you can imagine a trial lawyer having to have the jury do the math- 

JOHN QUINN: Yeah, I know ...

JEFFREY KESSLER: But 34 states, you know, and there'd be this, this debate as to whether it starts on different- 

JOHN QUINN: I'd rather have the court do that ...

JEFFREY KESSLER: Like on this date versus that date, right?

Because a lot of it had to do with statute of limitations- 

JOHN QUINN: Yeah ...

JEFFREY KESSLER: And which date it would pick up. 

JOHN QUINN: Yeah. So what is the status of the remedies phase now? 

JEFFREY KESSLER: So we have submitted, with the states the types of remedies we're gonna be asking for and the types of discovery we would like in connection with this phase.

The judge then has to set a schedule and decide on the scope of the discovery. Most of the remedies won't be the damages in this phase. It'll now be the, injunctive and inequitable relief part of the relief the states are seeking is structural, to have Ticketmaster spun off from Live Nation.

Part of it is conduct related relief. It's a very complicated set of relief proposals that will be considered. 

JOHN QUINN: So, I mean, this, this must have been a, a obviously a really exciting case to try, you've been trying antitrust cases your whole career, and how did you get into, how did you get into antitrust in the beginning?

JEFFREY KESSLER: So I went to Columbia Law School. I took an antitrust course as an elective my first year. It was my third choice, but I found the cases just intrinsically really interesting. I like the idea that you're bringing kind of like economics, and policy into industries, and that you learn the facts of each industry, and that you really can make a difference in affecting how that industry operates.

I said, "Boy, this is really interesting stuff." And so I chose a firm, at the time it was-- I was a summer associate. My first firm was Weil, Gotshal & Manges, and at the time, they had a fantastic New York antitrust practice led by a lawyer named Ira Millstein and Ira Millstein, Ira became my mentor and that's how I got into the world of antitrust.

So I've sort of been doing antitrust in the beginning because of that. 

JOHN QUINN: What was it like representing states, the attorney generals, rather than a private litigant? And have you ever done that before? What's it like? 

JEFFREY KESSLER: I have not, I have not done it before. It was quite interesting. First of all, it gave us a lot of colleagues.

We get some very good lawyers at these different states who are participating, and we included them. We made kind of like a seamless, trial team, and so we worked with them every day, and they were very supportive. But it also made it complicated because, in effect, there was, there were thirty-four votes, so that even though we had an organizingteam, that team had a-- If there were big decisions to be made and things, they had to inform the whole group and get the whole group to...

You know, I don't know if they actually took formal votes 'cause I wasn't on those, but they had to come to a consensus and keep everyone involved. So it's a complicated client when you have a lot of different states with different interests than, you know, as to how to proceed. But I think for most part of the trial decisions, we worked with the committee, and if the committee would agree with us, I think they were always able to get the rest of the states to go along and reach an agreement.

JOHN QUINN: I mean, what were some of the biggest challenges you faced in the case? I mean, you-- It sounds like you, you know, we all start with the witnesses that we're given. We start with the documents that we're given. We inherit that evidence. Sounds like you had some really good documents, but I'm sure there were some real challenges too.

JEFFREY KESSLER: There were, there were some, there were some real challenges, you know, obviously, there were things that were never done in discovery that we would have done that we just didn't have the information and the data, so we couldn't use it, there were decisions made as to who to be on a witness list and not be on a witness list that we couldn't change, like, for example, one of the things I would have done, that couldn't do is I would have tried to call some artists to be witnesses, and there were no artists on the witness list. So like- 

JOHN QUINN: Oh, really? 

JEFFREY KESSLER: Yes. 

JOHN QUINN: So, you didn't have the voice of the artist victims talking to you?

JEFFREY KESSLER: Right. Exactly. Exactly. So, you know, again, you sort of had to take... I kept saying, "This is the hand we've been dealt." There are good things about the hand, there are bad things about the hand, right? This is what we had to deal with, you know, they had some, you know, good witnesses on their side that, you know, always happens in a case.

You know, not everything is gonna be one-sided, dealing with their experts was very challenging in a very compressed period of time to learn and be prepared to deal with that. We weren't the ones who took the depositions. They had, you know, hundreds of pages of stuff we had to master, in terms of the work they did.

But again, since my expert philosophy is to, is to not battle about the, the tech-- you know, the technical details of regression analysis or something like that, I try to deal with it on a level the jury can understand, we were able to, you know, get them to a point where we think we got them really in a tough spot as to what, what to deal with in their experts, regarding that.

JOHN QUINN: I mean, do you have a general approach to trying antitrust cases? 

JEFFREY KESSLER: I-- same approach I take to my non-antitrust cases, which is I first try to figure out what's our story, you know, what are we telling the decision-makers as to why we should win, as to what happened at a very high level in an understandable way, and then try to figure out how to fit, all the evidence in a way that supports that story and supports the legal part of it.

But to me, it's all about how can I make this understandable, you know, how can I translate complicated economic concepts or legal concepts in a way that makes sense. Now, here, the story, you know, was, again, pretty simple when you got down to it. So we had different markets involved, but one story was that The defendants were engaging in anti-competitive acts to prevent any competition from emerging in ticketing.

And they did that through these long-term exclusive agreements. And they did this by withholding concert talent from venues who wouldn't use Ticketmaster to another competitor, and some other conduct too, but that was the core. And talking about how they did that to protect their market position and, and why it was a monopoly was basically our story in translating that there.

And again, the documents helped, right? Yeah. One of the documents spoke about digging a moat around the castle, right? Yeah. It was a great document, right? So the exclusives was digging the moats, right? Right. They're using the, they're using the threat of withholding talent was like, you know, firing, you know, you know, pouring boiling oil over the moat, to keep anybody from coming. So we were able to tell, you know, that story, right? How long was the trial and how long was the jury out?

After we, the week that we were not there, we ended up, I believe, with four more weeks of testimony about. So, in total it was about a five-week trial, with one, with one week off, lasting six weeks. And then the jury was out for four days. 

JOHN QUINN: That's a long time. 

JEFFREY KESSLER: For a civil antitrust jury, not a criminal jury, that is a long time.

So, and there were lots of questions. There must have been 20 questions, that the jury, sent out. 

JOHN QUINN: Were you starting to get optimistic based on the questions the jury was asking? 

JEFFREY KESSLER: Well, it seemed like they had a very complicated verdict form, right? And we had seen that the questions were, like, progressing through the verdict form.

So on the one hand, we were thinking that, well, you know, they're just deliberating very thoroughly and they seem to be making progress towards finding for us says, but on the other hand, we're also wondering, why is it taking this long? Is there a split? Is somebody holding out? We just couldn't, we didn't know, obviously.

I believe, I still don't know, but based on sort of how when the jury came in and how they each kind of affirmed the verdict, I don't think there was a split. I just think that they actually were me-methodically following the instructions, going through each of the questions on the verdict form, and making sure that they got it right.

So, but yeah four days, makes any trial lawyer nervous. 

JOHN QUINN: Yeah. Oh, well, thanks very much, Jeff Kessler of Winston & Strawn in New York. Remarkable story, substituting into a major antitrust trial in the middle of the trial, against a formidable defendant that has a pretty solid record of defending antitrust cases and coming out unscathed until now.

So congratulations to you. This is John Quinn. This has been Law, disrupted. 

JEFFREY KESSLER: Thank you so much.