Photo Credit: Benjamin Sharpe
Live Nation is firing back against the FTC’s “misguided” BOTS Act lawsuit, which it says contradicts the law’s “plain meaning, flouts the will of Congress, and undoubtedly sets back the fight against scalpers.”
The promoter and its Ticketmaster subsidiary formally answered the complaint yesterday, weeks after the presiding judge rejected their dismissal motion.
This was, of course, a less-than-ideal development for the defendants, which the FTC and seven states (Colorado, Florida, Illinois, Nebraska, Tennessee, Utah, and Virginia) maintain “routinely allow ticket brokers to exceed ticket limits” and otherwise fail to enforce the relevant purchase rules.
(Additionally, Ticketmaster allegedly “displayed deceptively low ticket prices to consumers and charged much more” via fees that appeared only at checkout, per the action; the newly filed answer reiterates the defendants’ pivot to all-in pricing.)
Technically, the BOTS Act bars “any person” from circumventing “a security measure, access control system, or other technological control…used by the ticket issuer to enforce posted event ticket purchasing limits.”
More importantly here, the straightforward law also prohibits one from moving “to sell or offer to sell any event ticket in interstate commerce obtained in violation” of the above rules.
This clause applies to all who “participated directly in or had the ability to control the conduct” or “knew or should have known that the event ticket was acquired in violation of” the BOTS Act.
As such, Live Nation has been adamant from the outset that the suit is little more than an attempt to punish it “for not perfectly blocking all ticket purchase abuse on Ticketmaster’s platform.”
The longstanding position is front and center in the defendants’ answer, which claims that the companies have invested “over $1 billion since 2010 to prevent scalpers’ industrial-scale, technology-driven ticket purchasing and to protect fans’ access to primary ticket sales.”
Plus, “nearly every major technological advancement in the fight against bots and automated ticket harvesting has come from” Live Nation and Ticketmaster, the latter of which “detected and blocked nearly 260 million attempts daily by bots to access its services” last year, according to the filing.
Other sections of the answer focus on congressional intent; “Congress passed the (BOTS) Act to combat scalpers who use bots and other technological exploits to circumvent ticket issuers’ safeguards and harvest tickets ahead of fans, not to penalize ticket companies,” per the defendants.
As lawmakers on both sides of the aisle are vocal critics of Live Nation/Ticketmaster – and as some of the same congressmembers submitted an amicus brief opposing the since-denied dismissal motion – it’s unclear how effective this argument will prove.
More interestingly, Live Nation is of the belief that the current approach (spearheading a BOTS Act-powered crackdown on ticketing platforms, that is) “risks a severe chilling effect on abuse prevention.”
The way the company sees things, abstaining from implementing anti-bot measures and ticket-quantity limits would leave platforms with “nothing for scalpers to circumvent” – thereby minimizing liability at the customer’s expense.
“Under the Commission’s reading, by contrast, any new abuse-prevention measure or ticket limit Ticketmaster deploys becomes a new source of potential liability whenever a determined scalper finds a way around it,” the filing states. “Platforms will face pressure to abandon prevention measures or purchase limits altogether, making it exponentially easier for scalpers to harvest tickets, forcing fans, artists, and venues to bear the cost.”
As for the case’s timeline, a protracted legal battle may well be in the cards; by the plaintiffs’ estimate, the trial won’t begin until April 2028, with Live Nation and Ticketmaster anticipating an October 2028 kickoff.
Meanwhile, a distinct BOTS Act action, filed this time against alleged ticket broker Key Investment Group, is likewise plodding along. Following an amicus brief from federal lawmakers, the courtroom confrontation is tangled in the discovery (and subpoena) weeds, the docket shows.
Last week, Senators Marsha Blackburn and Ben Ray Luján in a filing described the present discovery dispute as arising “out of the improper use of document subpoenas to root through constitutionally protected files of two United States Senators.”
“The Court should reject this attempt to rummage through legislative materials for that impermissible purpose for three reasons,” they continued. “First, the Speech or Debate Clause of the Constitution absolutely bars compelled disclosure of these legislative materials; second, the materials sought have no bearing on the relevant facts needed to resolve this action; and third, sovereign immunity precludes enforcement of these subpoenas.”
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