US President Joe Biden intends to nominate Lina Khan, a former counsel to the House of Representatives Judiciary Committee’s antitrust subcommittee, to be a commissioner of the Federal Trade Commission (FTC), the White House announced on Monday, March 22.
Lina Khan is an associate professor of law at Columbia Law School, where she teaches and writes about antitrust law, infrastructure industries law, and the antimonopoly tradition. Her antitrust scholarship has received several awards and has been published by the Yale Law Journal, Harvard Law Review, Columbia Law Review, and University of Chicago Law Review.
Khan previously served as counsel to the US House Judiciary Committee’s Subcommittee on Antitrust, Commercial, and Administrative Law, where she helped lead the Subcommittee’s investigation into digital markets. Khan was also a legal advisor in the office of Commissioner Rohit Chopra at the Federal Trade Commission and legal director at the Open Markets Institute. She is a graduate of Williams College and Yale Law School.
Khan’s nomination follows the appointment of Tim Wu, a Columbia Law professor, to work on technology and competition policy at the National Economic Council. Wu coined the term “net neutrality” and has been a prominent voice on the subject of antitrust regulation against Big Tech companies like Amazon, Facebook, and Google.
Biden’s choice of Khan to serve at the FTC comes as regulators, lawmakers, and the courts are facing immense pressure to take on Big Tech. The House Judiciary kicked off the second leg of its antitrust investigation last month and it’s poised to introduce competition legislation to rein in tech this spring.
Federal Judge Signals Revisions Likely in DOJ Case Targeting Live Nation Monopoly
A federal judge in New York has indicated that the Justice Department may need to revise its antitrust claims against Ticketmaster and its parent company, Live Nation Entertainment, in a case targeting the companies’ alleged monopoly in the live entertainment industry, per Courthouse News.
The case revolves around accusations that Live Nation’s policies force artists performing in its large amphitheaters to use its services as concert promoters, a practice federal prosecutors argue stifles competition.
During a hearing on Wednesday, U.S. District Judge Arun Subramanian, who is overseeing the case, questioned whether Live Nation’s refusal to rent its amphitheaters to rival promoters constitutes a violation of antitrust laws. According to Courthouse News, the central issue is whether this policy qualifies as illegal “tying” under antitrust law or if it falls under the Supreme Court’s 2004 decision in Verizon v. Law Offices of Curtis V. Trinko LLP. That precedent protects companies’ rights to refuse business with competitors in certain circumstances.
Live Nation has relied heavily on the Trinko ruling to support its motion to dismiss the lawsuit. The company argued that the plaintiffs’ claims mischaracterize how the live entertainment industry operates. According to Courthouse News, Live Nation asserted in its filings that “tying” involves forcing a buyer to purchase a secondary product they don’t want, which it claims does not apply in this case. The company stated, “Promoters are the ones who rent amphitheaters from Live Nation, and performing artists are the ones who hire promoters,” emphasizing that these buyers are distinct and independent actors.
Read more: Consumer Suit Against Live Nation and Ticketmaster to Proceed Alongside US Antitrust Case
Judge Subramanian pressed federal prosecutors to explain how their tying claims were distinct from a refusal-to-deal argument, which Trinko protects under certain circumstances. Department of Justice attorney Arianna Markell contended that the tying claims remain plausible and pointed to the Second Circuit’s ruling in Eastman Kodak Co. v. Henry Bath LLC. That ruling defined tying as requiring a buyer to purchase a second product as a condition of buying the first.
According to Courthouse News, Live Nation’s attorney, Andrew Gass of Latham & Watkins, argued that the Justice Department and state attorneys mischaracterized the dynamics of competition in the live entertainment business.
The civil antitrust case is part of a broader effort by federal and state prosecutors to challenge the dominance of Live Nation and Ticketmaster, which have faced mounting criticism for their control over ticketing, venues, and promotion in the live event industry. Judge Subramanian’s comments suggest the case may hinge on whether the claims can be reframed to survive the Trinko-based defense.
Source: Courthouse News
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