Day 18: Live Nation Alleges Perjury by a Key State Witness
The plaintiffs’ case for damages hinges on Dr. Abrantes-Metz expert testimony. Now, the defense is claiming she lied under oath.
While the jurors got the day off of trial on Wednesday, the counsel most certainly did not. Earlier this week, the defense accused one of the plaintiffs’ key experts of perjury and moved to strike her testimony. Live Nation is well-know for its aggressive litigation tactics, but the judge held a conference with the parties yesterday and made clear he is taking the allegations seriously.
At issue is the testimony of Dr. Rosa Abrantes-Metz, the states’ damages expert. She essentially quantified how much Ticketmaster’s alleged monopoly power costs fans. If the jury finds in the plaintiffs’ favor, they will likely use Abrantes-Metz’s calculations to determine the damages awarded to the states. Now, it is a question whether the jury will be allowed to consider her testimony at all.
Retained Amounts: How Fans Allegedly Got Overcharged
When Abrantes-Metz took the stand last Tuesday, she presented a model comparing Ticketmaster to its closest competitor, AXS. Her goal was to strip away all other variables that affect ticketing fees to isolate the impact of the alleged anticompetitive behavior.
She built her testimony around the concept of a “retained amount,” which she described as the portion of the ticketing fee Ticketmaster takes from venues. According to her calculation, Ticketmaster retained $2.30 more per ticket than AXS simply due to its anticompetitive behavior. Of that, between $1.56 and $1.72 were paid by fans through ticketing fees. That, she said, is the overcharge. Multiply it across every ticket sold in the plaintiff states from 2017 to 2024, and that is a lot of money.
The Critical Moment on the Stand
On the stand she repeatedly insisted that she relied on “instructions provided by Live Nation on how to calculate retained amounts.” But according to Live Nation, this is not true. She constructed the retained amount from Ticketmaster data; the company itself does not calculate or use this term.
According to Live Nation, she knew that it was not true, because Live Nation had previously argued that she should be barred from testifying because her model ignored upfront payments to venues—payments that, they said, affect ticketing fees. The plaintiffs argued that upfront payments were irrelevant to the calculation, and the judge allowed her to testify.
Following one exchange on the stand in which Abrantes-Metz claimed she followed Live Nation’s guidance, the judge asked plaintiffs’ counsel, Brent Nakamura at a sidebar, “Where is this coming from?” It had not previously been suggested that Live Nation or Ticketmaster defined or used the term in this way. Nakamura pointed to a footnote in her expert report. Trial continued. The defense now insists the footnote offers little more than “in-the-weeds” descriptions of “esoteric database entries,” not retained amounts.
The Defense Lobs Perjury Allegations
Accusing an opposing expert of perjury is rare and serious, but the defense nonetheless took this step.
“While we do not say this lightly, she has resorted to lying about the origins of this argument to defend her work and, in particular, to evade the critique that her concept of ‘Retained Amounts’ was made out of whole cloth,” the defense wrote in its memorandum.
The Judge’s Response
The judge signaled real concern about the issue during yesterday’s conference. “I honestly want to make sure the plaintiffs are taking this seriously,” he said at the outset. He denied their request for extra time to respond, ordering a reply by Friday, and instructed the plaintiffs to prepare to bring Abrantes-Metz back to court as early as Monday.
He flung around the words “inexplicable,” “perplexing” and “bewildering” to describe his questions about not only how the retained amount was presented but also how it was calculated. If I had to guess, I would bet that Abrantes-Metz unintentionally committed an error in describing the basis for her calculations.
We can’t say what will come of this situation until the plaintiffs file their response. It could be nothing, or it could very much be something. At a minimum, the plaintiffs are now forced to devote time to this issue that would otherwise be spent preparing for the remaining cross-examinations.
Out of all the obstacles that could have derailed the plaintiffs—not least that their DOJ counterparts abandoned them mid-trial—it’s hard to believe this could be among the most significant. And yet, here we are. Adding to the irony for the plaintiffs, the fact that Abrantes-Metz did not rely on Live Nation’s instructions in her calculations is almost certainly meaningless to jurors, buried beneath the flood of numbers and technicalities they have been asked to consider throughout this trial.
An Update on the Secret Bob Mueller Termination Documents
Abrantes-Metz was not the only topic discussed Wednesday. The judge started out the day by threatening to hold the AEG lawyer who sent Bob Mueller’s termination documents in contempt of court and then he heard arguments from both sides on the defense’s recently filed motion for judgement. If you don’t know about the secret AEG termination documents, I broke it down in a piece earlier this week. For those interested in the saga, redacted versions of the emails exchanged among those involved have now been made public.
And so this trial continues, with its nasty litigation.