United States of America v. Live Nation Entertainment, Inc.

The Honorable Arun Subramanian August 19, 2024

Daniel Patrick Moynihan U.S. Courthouse

500 Pearl St., Courtroom 15A

New York, NY 10007

Re: United States et al. v. Live Nation Entertainment, Inc., et al., No. 1:24-cv-3973-AS

Dear Judge Subramanian:

Plaintiffs seek the Court’s leave to file under seal an Amended Complaint and to

file a redacted version of the same on the public docket for the reasons stated below.

Contemporaneous with the filing of this letter-motion, and in accordance with Paragraph

11(c)(iii) of the Court’s Individual Practices and Paragraph 9 of the Protective Order,

ECF No. 213, Plaintiffs are (1) publicly filing on ECF a copy of the Amended Complaint

with proposed redactions and (2) filing under seal on ECF an unredacted copy of the

Amended Complaint with proposed redactions highlighted.

Plaintiffs Seek Provisional Redaction of the Amended Complaint Solely to

Comply with the Protective Order and the Court’s Individual Practices

Plaintiffs request provisional redaction of the Amended Complaint only because it

contains information that Defendants have designated as Confidential or Highly

Confidential and have requested to be redacted. The Protective Order and Your Honor’s

Individual Practices govern the procedures for filing such material on the Court’s docket.

Those procedures are three-fold.

First, if a person produces material designated Confidential or Highly

Confidential, any other person that intends in good faith to make a filing on the Court’s

docket containing such material may request that the producing party provide a version of

the material “with the Highly Confidential or Confidential information redacted.”

Protective Order ¶ 4. Such redactions “must be narrowly tailored to serve whatever

purpose justifies the redaction or sealing and must be otherwise consistent with the

presumption in favor of public access to judicial documents.” Individual Practices

¶ 11(B).

Second, the filing party “should meet and confer with any opposing party . . . in

advance to narrow the scope of the request” for redaction or sealing. Individual Practices

¶ 11(C)(i); accord Protective Order ¶ 9 (“The parties will use their best efforts to

minimize such sealing.”). If, following that meet and confer, the opposing party or third

party “has requested” that a document be filed “under seal or in redacted form,” then “the

filing party shall notify the opposing party or third party that it must file, within three

business days [of filing], a letter explaining the need to seal or redact the document.”

Individual Practices ¶ 11(C)(i).

Third, the filing party must file under seal “all portions of pleadings, motions, or

other papers . . . that disclose such Highly Confidential or Confidential” material, and the

filing “shall be . . . kept under seal until further order of the Court.” Protective Order ¶ 9.

To do so, the filing party must “file a letter-motion seeking leave to file a document in

redacted form,” which “shall be filed in public view” and “should explain the reasons for

seeking to file the document in redacted form.” Individual Practices ¶ 11(C)(iii).

highlighted.” Id.

Plaintiffs followed these procedures as to both non-parties and Defendants. After

conferrals, no non-party requested redaction of any information in the Amended

Complaint. As to Defendants, Plaintiffs first identified the specific portions of documents

designated Confidential or Highly Confidential that are the basis for the redacted portions

of the Amended Complaint and asked Defendants to propose redactions to those

documents. Plaintiffs sent Defendants such requests on June 13, June 26, and July 25.

Defendants responded to the first two requests on July 2, 2024, and they responded to the

third request on August 14, fourteen business days after it was made and three business

days before the Amended Complaint was due to be filed.

In an effort to eliminate, or at least narrow, the need for redactions, Plaintiffs

requested on August 15 to meet and confer with Defendants about Defendants’ basis for

the proposed redactions that are the subject of the present letter-motion. Defendants,

however, did not make themselves available for such a conferral.

Defendants Must Show “Extraordinary Circumstances” to Justify Any

Continuing Redaction of the Amended Complaint

Plaintiffs request provisional redaction of certain information from the Amended

Complaint solely because Defendants requested such redaction. Plaintiffs do not believe,

however, that the information at issue should remain sealed because it is not confidential

or sensitive enough to overcome the “presumption of public access” to “judicial

documents.” Bernstein v. Bernstein Litowitz Berger & Grossman LLP, 814 F.3d 132, 141

(2d Cir. 2016). That presumption is “firmly rooted in our nation’s history,” deriving from

both the common law and the First Amendment. Lugosch v. Pyramid Co. of Onondaga,

435 F.3d 110, 119–20 (2d Cir. 2006).

The presumption of public access applies with special force to a complaint

because, among other things, (1) “[c]omplaints have historically been publicly accessible

by default, even when they contain arguably sensitive information,” (2) “public access to

the complaint and other pleadings has a ‘significant positive role’ in the functioning of

the judicial process,” and (3) complaints “are highly relevant to the exercise of Article III

judicial power” and “among the most likely [records] to affect judicial proceedings.”

Bernstein, 814 F.3d at 141–42 (citation omitted). For core judicial documents like a

complaint, the presumption of public access “is at its zenith, and thus can be overcome

only be extraordinary circumstances.” Id. (citation omitted).

“The burden of demonstrating that a document submitted to a court should be

sealed rests on the party seeking such action,” DiRussa v. Dean Witter Reynolds Inc., 121

F.3d 818, 826 (2d Cir. 1997), and sealing “should not be done without a compelling

reason,” City of Hartford v. Chase, 942 F.2d 130, 135 (2d Cir. 1991). Therefore,

Defendants, as the only parties advocating continuing redaction of the Amended

Complaint, have the burden to establish “a compelling reason” and “extraordinary

circumstances” to maintain redactions. Defendants’ burden extends to each specific piece

of information. See Brown v. Maxwell, 929 F.3d 41, 48–51 (2d Cir. 2019) (court must

conduct “individualized review” and make “specific, on-the-record findings that sealing

is necessary to preserve higher values”).

Although Defendants have not yet explained their basis for their redaction

Defendants can carry their burden of showing “extraordinary circumstances,” Bernstein,

814 F.3d at 142, or establishing that all of the redactions at issue are otherwise

“consistent with the presumption in favor of public access to judicial documents.”

Individual Practices § 11(B). Although Plaintiffs request a fuller opportunity to respond

to any letter-motion to seal filed by Defendants, the redactions at issue do not appear to

present a sufficient “risk of competitive disadvantage” to overcome the strong

presumption of public access to complaints. See Wenger S.A. v. Olivet Int'l Inc., 2024

WL 3581796, at *2 (S.D.N.Y. June 25, 2024) (Subramanian, J.) (denying proposed

redactions in a summary judgment opinion). Much, if not all, the information at issue

appears to be sufficiently aggregated, non-specific, historical or otherwise competitively

non-actionable, such that public disclosure would be unlikely to cause Defendants harm.

If Defendants seek continued redaction of any information in the Amended

Complaint, Plaintiffs request that Defendants be required to file a letter-motion to seal

within three business days “explaining the need to seal or redact the document,” see

Individual Practices § 11(C)(), and Plaintiffs further request an opportunity to respond to

that letter-motion within three business days.

Respectfully submitted,

/s/ Bonny Sweeney

BONNY SWEENEY

Lead Trial Counsel

The application for provisional sealing is

Matthew R. Huppert

granted. If Defendants want the unredacted . .

: . United States Department of Justice

complaint to remain under seal, they must Antitrust Division

file a letter-motion within three business 450 Fifth Street N.W., Suite 4000

days explaining the basis for continued Washington, DC 20530

sealing. See Bernstein v. Bernstein Litowitz Telephone: (202) 725-0165

Berger & Grossmann LLP, 814 F.3d 132, Facsimile: (202) 514-7308

140 (2d Cir. 2016). Email:Bonny.Sweeney@usdo}j.gov

The Clerk of Court is directed to terminate Attorneys for Plaintiff

the motion at ECF No. 232. United States of America

SO ORDERED.

Arun Subramanian, U.S.D.J.

Date: August 19, 2024

Office of the Arizona Attorney General Kim Carlson McGee (admitted pro hac vice)

Consumer Protection & Advocacy Section Assistant Attorney General

2005 N. Central Avenue Office of the Attorney General of Connecticut

Phoenix, AZ 85004 165 Capitol Avenue

Telephone: (602) 542-3725 Hartford, CT 06106

Fax: (602) 542-4377 Telephone: 860-808-5030

Robert.Bernheim@azag.gov Email: kim.mcgee@ct.gov

Attorney for Plaintiff State of Arizona Attorney for Plaintiff State of Connecticut

/s/ Amanda J. Wentz /s/ Elizabeth G. Arthur

Amanda J. Wentz (admitted pro hac vice) Elizabeth G. Arthur (admitted pro hac vice)

Assistant Attorney General Assistant Attorney General

Arkansas Attorney General's Office Office of the Attorney General for the District

323 Center Street, Suite 200 of Columbia

Little Rock, AR 72201 400 6th Street NW, 10th Floor

Phone: (501) 682-1178 Washington, DC 20001

Fax: (501) 682-8118 Attorney for Plaintiff District of Columbia

Email: amanda.wentz@arkansasag.gov

Attorney for Plaintiff State of Arkansas  /s/ Lizabeth A. Brady

Lizabeth A. Brady

/s/ Paula Lauren Gibson Director, Antitrust Division

Paula Lauren Gibson (Admitted Pro Hac Liz.Brady@myfloridalegal.com

Vice) Florida Office of the Attorney General

Deputy Attorney General PL-01 The Capitol

(CA Bar No. 100780) Tallahassee, FL 32399-1050

Office of the Attorney General 850-414-3300

California Department of Justice Attorney for Plaintiff State of Florida

300 South Spring Street, Suite 1702

Los Angeles, CA 90013 /s/ Richard S. Schultz

Tel: (213) 269-6040 Richard S. Schultz (Admitted pro hac vice)

Email: paula.gibson@doj.ca.gov Assistant Attorney General

Attorneys for Plaintiff State of California Office of the Illinois Attorney General

Antitrust Bureau

/s/ Conor J. May 115 S. LaSalle Street, Floor 23

Conor J. May (admitted pro hac vice) Chicago, Illinois 60603

Assistant Attorney General (872) 272-0996 cell phone

Antitrust Unit f (312) 814-4209 facsimile

Colorado Department of Law Attorney for Plaintiff State of Illinois

Conor.May@coag.gov

1300 Broadway, 7th Floor /s/ Schonette J. Walker

Denver, CO 80203 Schonette J. Walker (Admitted pro hac vice)

Assistant Attorney General

Telephone: (720) 508-6000

Chief, Antitrust Division

Attorney for Plaintiff State of Colorado 200 St. Paul Place, 19th floor

Baltimore, Maryland 21202

(410) 576-6470

Attorney for Plaintiff State of Maryland

/Ks/a tKhaerthineeri nWe .W K.r eKmresm (sa d m itted pro hac /s/ Yale A. Leber

vice) Yale A. Leber (admitted pro hac vice)

Assistant Attorney General, Antitrust Division Deputy Attorney General

Office of the Massachusetts Attorney New Jersey Office of the Attorney General

General 124 Halsey Street, 5th Floor

One Ashburton Place, 18th Floor Newark, NJ 07101

Boston, MA 02108 Phone: (973) 648-3070

(617) 963-2189 Attorney for Plaintiff State of New Jersey

Attorney for Plaintiff Commonwealth of

Massachusetts /s/ Jeremy R. Kasha

Jeremy R. Kasha

/s/ LeAnn D. Scott Assistant Attorney General

LeAnn D. Scott (admitted pro hac vice) Jeremy.Kasha@ag.ny.gov

Assistant Attorney General  New York State Office of the Attorney General

Corporate Oversight Division 28 Liberty Street

Michigan Department of Attorney General  New York, NY 10005

P.O. Box 30736 (212) 416-8262

Lansing, MI 48909 Attorney for Plaintiff State of New York

Tel: (517) 335-7632

Attorney for Plaintiff State of Michigan  /s/ Sarah G. Boyce

Sarah G. Boyce (admitted pro hac vice)

/s/ Zach Biesanz Deputy Attorney General & General Counsel

Zach Biesanz North Carolina Department of Justice

Senior Enforcement Counsel Post Office Box 629

Antitrust Division Raleigh, North Carolina 27602

zach.biesanz@ag.state.mn.us Phone: (919) 716-6000

Office of the Minnesota Attorney General Facsimile: (919) 716-6050

445 Minnesota Street, Suite 1400 Attorney for Plaintiff State of North Carolina

Saint Paul, MN 55101

Phone: (651) 757-1257 /s/ Sarah Mader

Attorney for Plaintiff State of Minnesota Sarah Mader (Admitted pro hac vice)

Assistant Attorney General

/s/ Lucas J. Tucker Antitrust Section

Lucas J. Tucker (admitted pro hac vice) Office of the Ohio Attorney General

Senior Deputy Attorney General 30 E. Broad St., 26th Floor

Office of the Nevada Attorney General Columbus, OH 43215

Bureau of Consumer Protection Telephone: (614) 466-4328

100 N. Carson St. Attorney for Plaintiff State of Ohio

Carson City, NV 89701

Email: ltucker@ag.nv.gov /s/ Caleb J. Smith

Attorney for Plaintiff State of Nevada Caleb J. Smith (admitted pro hac vice)

Assistant Attorney General

/s/ Zachary Frish Consumer Protection Unit

Zachary A. Frish (admitted pro hac vice) Office of the Oklahoma Attorney General

Assistant Attorney General 15 West 6th Street

Consumer Protection & Antitrust Bureau Suite 1000

New Hampshire Attorney General’s Office Tulsa, OK 74119

Department of Justice Telephone: 918-581-2230

1 Granite Place South Email: caleb.smith@oag.ok.gov

Concord, NH 03301 Attorneys for Plaintiff State of Oklahoma

(603) 271-2150

Attorney for Plaintiff State of New

Hampshire

/s/ Tim Nord

Tim Nord (admitted pro hac vice) /s/ Diamante Smith

Special Counsel Diamante Smith (admitted pro hac vice)

Civil Enforcement Division Assistant Attorney General, Antitrust Division

Oregon Department of Justice Trevor Young (admitted pro hac vice)

1162 Court Street NE Deputy Chief, Antitrust Division

Salem, Oregon 97301 Office of the Attorney General of Texas

Tel: (503) 934-4400 P.O. Box 12548

Fax: (503) 378-5017 Austin, TX 78711-2548

Attorney for Plaintiff State of Oregon (512) 936-1674

Attorney for Plaintiff State of Texas

/s/ Joseph S. Betsko

Joseph S. Betsko (admitted pro hac vice) /s/ Tyler T. Henry

Assistant Chief Deputy Attorney General Tyler T. Henry (admitted pro hac vice)

Antitrust Section Senior Assistant Attorney General

Pennsylvania Office of Attorney General Office of the Attorney General of Virginia

Strawberry Square, 14th Floor

202 North 9th Street

Harrisburg, PA 17120 Richmond, Virginia 23219

Phone: (717) 787-4530 Telephone: (804) 786-2071

Attorney for Plaintiff Commonwealth of Facsimile: (804) 786-0122

Pennsylvania thenry@oag.state.va.us

Attorney for Plaintiff Commonwealth of

/s/ Paul T.J. Meosky Virginia

Paul T.J. Meosky (admitted pro hac vice)

Special Assistant Attorney General /s/ Rachel A. Lumen

150 South Main Street Rachel A. Lumen (admitted pro hac vice)

Providence, RI 02903 Assistant Attorney General, Antitrust Division

(401) 274-4400, ext. 2064 Washington Office of the Attorney General

(401) 222-2995 (Fax) 800 Fifth Avenue, Suite 2000

Attorney for Plaintiff State of Rhode Island Seattle, WA 98104-3188

(206) 464-5343

/s/ Danielle A. Robertson Attorney for Plaintiff State of Washington

Danielle A. Robertson (admitted pro hac

vice) /s/ Douglas L. Davis

Assistant Atorney General Douglas L. Davis (admitted pro hac vice)

Office of the Attorney General of South Senior Assistant Attorney General

Carolina Consumer Protection and Antitrust Section

P.O. Box 11549 West Virginia Office of Attorney General

Columbia, South Carolina 29211 P.O. Box 1789

DaniRobertson@scag.gov Charleston, WV 25326

(803) 734-0274 Phone: (304) 558-8986

Attorney for Plaintiff State of South Fax: (304) 558-0184

Carolina Attorney for Plaintiff State of West Virginia

/s/ Hamilton Millwee /s/ Laura E. McFarlane

Hamilton Millwee (admitted pro hac vice) Laura E. McFarlane (admitted pro hac vice)

Assistant Attorney General Assistant Attorney General

Office of the Attorney General and Wisconsin Department of Justice

Reporter Post Office Box 7857

P.O. Box 20207 Madison, WI 53707-7857

Nashville, TN 38202 (608) 266-8911

Telephone: 615.291.5922 mcfarlanele@doj.state.wi.us

/s/ William T. Young

William T. Young

Assistant Attorney General

Wyoming Attorney General’s Office

109 State Capitol

Cheyenne, WY 82002

(307) 777-7841

william.young@wyo,gov

Attorney for the Plaintiff State of Wyoming