States Substitute for Corrupt Feds on Antitrust
On Monday, the monopolization trial against Live Nation picked up where it left off a week earlier, with Jay Marciano, CEO of AEG Entertainment, the nation’s second-largest live concert promoter, under direct questioning. But there was a different lawyer in the lead plaintiff’s chair: Jeffrey Kessler, a superstar private litigator who successfully prosecuted cases against NASCAR and the NCAA, was seated in place of David Dahlquist, the Justice Department’s lead trial attorney.
The reason for the swap is that DOJ settled their claims against Live Nation on March 9, and pressured many of the 39 states (and the District of Columbia) in the case, particularly the Republican ones, to go along with them. But in the end, only seven states did so—Arkansas, Iowa, Mississippi, Nebraska, Oklahoma, South Carolina, and South Dakota, all Republican-led. (Only Arkansas, Nebraska, and South Dakota have signed term sheets.) The other 32, including Republican AGs in Florida, Indiana, Kansas, Louisiana, New Hampshire, Ohio, Texas, Tennessee, Utah, West Virginia, and Wyoming, failed to come to agreement after forced settlement talks from the judge.
In other words, more Republican attorneys general stayed in the case than settled, despite White House pressure. Texas AG Ken Paxton didn’t settle even though he may benefit from President Trump’s endorsement in his runoff for U.S. Senate. Republicans saw it as more strategic to break with Trump’s slap on the wrist of perhaps the most hated company in the United States.
In between the settlement announcement and the resumption of the trial, unredacted transcripts of Slack messages were released showing Live Nation executives joking about ripping off fans (“Robbing them blind baby … that’s how we do” was one self-assessment; “These people are so stupid … I almost feel bad taking advantage of them” was another). The states surely knew about this evidence and many likely surmised that, despite DOJ having run the trial and committed 40 full-time attorneys to it, a case proving that Live Nation is a particularly heinous monopoly could probably litigate itself.
“I don’t think the federal agencies have a monopoly on enforcing these key laws.”
Rohit Chopra
But it does take some courage, solidarity, and a change in mindset to take on monopolization cases and merger challenges where the federal government has traditionally (though not always) taken the lead. “We have an antitrust role … The federal government’s not playing it, I’m sorry to say, I say that with disappointment not with joy,” said California Attorney General Rob Bonta, on the sidelines of a conference on the future of Hollywood last week in Beverly Hills. “They have been great partners in the past. But their actions … have suggested that they’re less interested now. And so that means that we have to play a more prominent role, and we will.”
Wall Street is taking notice. As my co-host Matt Stoller mentioned on our recent episode of Organized Money, while Live Nation’s stock jumped last Monday after news of the federal settlement, by the end of the week it was below where it started. Clearly, some investors feel that Live Nation continues to be in deep trouble.
Bonta and his colleagues have other cases to attend to as well, picking up the slack for a corrupt and inert law enforcement apparatus in Washington. There are real questions about whether they will have the resources and capacity to do so. But inaction is not an option, according to former federal enforcers.
“I don’t think the federal agencies have a monopoly on enforcing these key laws,” said Rohit Chopra, former Consumer Financial Protection Bureau director and member of the Federal Trade Commission, who has been advising states on enforcement actions. “When you have a situation in Washington where they’re either a dead fish or completely corrupt, this shows the important role for the states.”
EVEN WITH AN ACCOMPLISHED ATTORNEY like Kessler manning the case, what the states are trying to pull off in Live Nation is a scramble. It may succeed, but it may be deficient in understanding the evidence, finding the right expert witnesses, and so on.
A scramble also defines the proposed merger between Nexstar and Tegna, two of the largest owners of local television stations across the country. Pitched as a way to “compete with Big Tech and Big Media” and financed with billions in debt, the merging parties are seeking a speedy closure that will likely lead to what Bonta called a “race to the courthouse.” Trump himself has weighed in to endorse the deal, immediately followed by FCC chair Brendan Carr parroting, “Let’s get it done.”
In a speech at the Beverly Hills conference put on by the investigative news site The Capitol Forum, Bonta characterized the merger as potentially leading to “higher prices and less access to news and sports.” He later told reporters that this would be the first media merger to close this year, so among the coalition of attorneys general, energies are focused there. That puts the Paramount–Warner Bros. proposed merger further back in line.
As I have written, there is concern that Paramount and its chief legal officer Makan Delrahim would accelerate the merger and quickly commingle the companies before the states would have a chance to react. But Bonta was oddly confident that he would have ample time to scrutinize the deal when I asked him about it. “We think there’s more time on that one,” he said. “And so we’ll monitor, if things change, we’ll adjust appropriately.”
For his part, Delrahim, who gave a speech at the conference, committed that “we will not be closing this transaction for at least another 60 days from today,” which generated laughter among the crowd. Sources tell the Prospect that Paramount is complying with California’s document requests. Publicly, the company has targeted closing the deal in the third quarter of 2026, after which a “ticking fee” of $0.25 per share per quarter applies. So September is a more realistic deadline, giving the states months to build a case.
Delrahim did his best to make the case for the deal, but there were some glaring contradictions. He committed, as the company has elsewhere, to 30 movies per year from the two studios after the merger—which will impose immense debt service costs—and that the $6 billion in “synergies” (meaning job cuts) would only come from duplicative services like information technology, operations, and marketing. But then he said that the best way to revitalize the theatergoing experience was by exciting the public with a marketing campaign. Put on by whom?
At the conference, several antitrust lawyers and experts made the case that the Paramount merger would create too much consolidation, too much debt, and not enough entertainment programming. (The merger between Disney and Fox was pitched as likely to increase film production, and yet those studios’ output has since fallen by nearly half.) The Teamsters, which represents studio workers and drivers in Hollywood, has come out against the deal, as have congressional Democrats and numerous liberal groups.
But there are real resource constraints for Bonta and his fellow attorneys general. They have to find the evidence and the witnesses to speak to the likely lost opportunities and reduced output for creative professionals, while navigating the fact that writers and directors and actors may not want to go on the record against a future employer. “People are afraid to speak at this conference. I’ve had a lot of people drop out,” Capitol Forum executive editor and CEO Teddy Downey said from the podium in Beverly Hills.
In Bonta’s address, he talked about three cases—Nexstar/Tegna, Paramount/Warner Bros., and the active Live Nation monopolization trial—and that’s just in the media and entertainment sphere. Bonta also has a case against Amazon going in state court. Reporters questioned whether a state justice department budget could stretch this far for what are expensive undertakings, even in coalitions of the states.
One option is to get state appropriations for specific initiatives. There is a precedent for this: The case originated in Texas against Google’s advertising technology business was funded through a direct appropriation for those legal costs. And both media mergers have high salience for California lawmakers who are concerned about right-wing takeovers of the news. “The [California] Department of Justice is doing their job because we know the federal government will not,” Gov. Gavin Newsom said over the weekend. I asked the governor’s office whether the state office should be funded accordingly for the increased workload. A spokesperson referred me to the state Department of Justice. (Responding to questions last week about whether his office had the funding to pursue all these cases at once, Bonta said, “We can do it, and we’ll do it all if we need to.”)
Some members of the legislature believe they’ve hit on a solution. “Right before Trump was inaugurated, we held a special session to dedicate tens of millions of dollars to the attorney general’s office to fight the Trump administration on all fronts,” said Assemblymember Isaac Bryan (D-Culver City), referring to a $50 million litigation fund that helped support 52 lawsuits against the Trump administration in 2025 alone. Bryan seemed to believe that money could be tapped for these merger challenges to stand in place of the federal government. “I think Trump is putting his finger on the scale,” Bryan said. “I don’t think there will be a specific fund for any specific lawsuit, but more of a general fund to fight the harm that’s coming out of D.C.”
Gov. Newsom’s office did not respond about whether that litigation fund would be applicable to merger challenges.
The money will have to come from somewhere; sharing resources can only go so far. But an important resource in the fights to come is renewable: political will. On that score, attorneys general have ramped up.
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