No images? Click here Welcome to The Corner. In this issue, we look at how fixing Ticketmaster also means fixing the problem of exclusive dealing. And we lead a call on the FTC to issue bright-line rules to outlaw non-competes.
Fixing Ticketmaster Also Requires Cracking Down on Exclusive Dealing Karina Montoya Over the last few weeks, the ticket sales fiasco caused by Ticketmaster’s mismanagement of Taylor Swift’s Eras tour has led to an outpouring of public condemnation of monopolistic control over the ticketing market. The rage of the ‘Swifties’ has led to renewed calls — including from leading lawmakers — to break up the entertainment giant created by the Ticketmaster’s 2010 purchase of concert promoter Live Nation. The merger, which was approved by the Obama Department of Justice (DOJ), has resulted in a live entertainment market dominated by one player, in which music fans face skyrocketing fees for ticketing services and automated price gouging by Ticketmaster and secondary brokers. But besides revisiting that decision, the public anger also offers an opportunity for the DOJ and the Federal Trade Commission (FTC) to crack down on an increasingly common way that big corporations abuse their power, which is to restrict the freedom of smaller companies to do business with whomever they choose. The practice — often called exclusive dealing — has long been used by monopolists to stifle competition. Extensive consolidation in recent years, combined with a collapse in enforcement, has led to a surge in the practice. In the case of Ticketmaster-Live Nation, enforcing the law should be relatively easy. In its 2010 deal with the DOJ to get the merger approved, Ticketmaster-Live Nation promised not to retaliate against venues that refused to deal exclusively with Ticketmaster. In 2020, the DOJ found the conglomerate had violated that condition. But rather than impose fines or restructure the corporation, the Antitrust Division agreed to another settlement with Ticketmaster-Live Nation to “clarify” that prohibition. Ticketmaster abuse of its power dates back to long before it purchased Live Nation. As a recent antitrust lawsuit filed in a federal California court claims, Ticketmaster first began to push such exclusive deals in the early 1980s. The corporation began offering upfront fee payments to venues in exchange for long-term rights to handle their ticket sales. The move significantly changed traditional business practices in the live entertainment market. According to the lawsuit, it enabled Ticketmaster to “quickly snap up a web of long-term exclusive dealing contracts with venues throughout the country.” By the early 1980s, however, the radical Chicago School reinterpretation of competition policy had also altered attitudes among enforcement agencies and the courts towards such exclusive dealings. The overall effect was to largely ignore the problem. In late November, the DOJ announced that it has opened a new investigation of Ticketmaster-Live Nation’s business conduct. This will provide the DOJ with a new chance to correct the record by truly enforcing the Ticketmaster-Live Nation’s 2010 agreement not to engage in exclusive dealing. But as the Open Markets Institute made clear in a July 2020 petition to the FTC, the time has come for a more far-reaching ban on such agreements. Otherwise, the DOJ and FTC will be left playing an endless game of whack-a-mole through costly and protracted litigation under current monopolist-friendly legal standards.
Open Markets and Farming Groups Send Letter Urging FTC To Block Kroger-Albertsons Merger Open Markets Institute partnered with leading farming advocacy groups to submit a letter to Federal Trade Commission Chair Lina Khan calling on the agency to block the pending merger between Albertsons and Kroger. The letter argues that the merger of these grocer giants would result in higher food prices, store closures, and layoffs and lower wages, as well as drive out independent grocers and food businesses. "This is a time when we need more community control over our food system, not more corporate concentration,” the letter read. OMI’s farming advocacy partners included HEAL Food Alliance, National Farmers Union, Rural Advancement Foundation International-USA, National Family Farm Coalition, and Farm Action. Reuters covered the coalition letter calling for the FTC to block the Kroger-Albertsons merger.
Open Markets and Public Citizen Draft Letter to FTC Calling for Ban on Non-Competes Open Markets Institute and Public Citizen led an effort to draft a letter to the Federal Trade Commission urging the agency to ban the use of non-compete clauses in employment contracts, which depress wages and prevent workers from seeking new jobs. Two dozen consumer advocacy and organized labor groups joined OMI in signing the letter, which read: “It is vital that the FTC begin the rulemaking process to signal to the public, courts, and corporate America that it is committed to fair competition in the labor market.” OMI legal director Sandeep Vaheesan co-authored an article on the same topic that was published in Project Syndicate. Describing the coercive nature of non-competes, he and co-author Najah Farley from National Employment Law Project called on U.S. President Biden to use his executive powers to outlaw non-competes.
OMI Strategic Councilor on Democracy and Power Spoke at House Judiciary Committee Hearing Open Markets Institute’s Strategic Councilor on Democracy and Power Caroline Fredrickson last week spoke at a House Judiciary Committee hearing on how conservative activists have long coordinated campaigns to influence Supreme Court justices. Entitled “Undue Influence: ‘Operation Higher Court’ and Politicking at SCOTUS,” the hearing was held in the wake of an eye-opening report from the New York Times, which was based on allegations from whistleblower Rev. Robert Schenck, who also spoke at the committee hearing. 📝 WHAT WE'VE BEEN UP TO:
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We appreciate your readership. Please consider making a contribution to support the continued publication of this newsletter. 📈 VITAL STAT:10%The percentage of global revenue EU antitrust regulators could exact from Amazon had it not reached an agreement to give rivals equal access to valuable space on its website and stop using information it gathers from independent merchants selling on its sites to improve its own product offerings. The company earned $470 billion last year. (New York Times) 📚 WHAT WE'RE READING:
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