The Southern District of New York granted the motions of defendant booking agencies and concert promoters for summary judgment against Sherman Act Section 1 claims brought by plaintiff African American concert promoters alleging conspiracies to engage in group boycotts and market allocation. Rowe Entertainment, Inc. v. The William Morris Agency, Inc., 2005 U.S. Dist. LEXIS 75 (S.D.N.Y. Jan. 5, 2005).

Plaintiffs alleged violations of the antitrust laws in connection with the promotion of live concert performances throughout the United States of pop, rock and “urban” music. Concert artists retain booking agencies to procure engagements. The agencies, in turn, select which promoters to use at particular geographic locations to present the concerts. The promoters secure the venue where a concert will take place, advertise the concert, arrange security and perform other tasks, such as selling tickets to the public. Promoters are responsible for all financial aspects of the show, including the payments guaranteed to the artists, the building deposit, production cost and advertising, and bear the risk of financial loss.

Plaintiffs alleged that they specialized in “urban” music, consisting of R&B, hip-hop and rap. They asserted that white promoters dominated the promotion of such concerts due to the booking agencies exercising their control and power to exclude plaintiffs from competing in the concert industry and defendant promoters entering into conspiracies to exclude plaintiffs, thereby preventing concerts from being promoted at lower prices.

Plaintiff’s asserted a market for live performances of contemporary music concerts in venues with more than 3,000 seats throughout the United States. The court first rejected the contention that concert promotion for venues with 3,000 or more seats were not reasonably interchangeable with concerts conducted at smaller venues. The court also stated that the market shares of defendants were too small to enable them to dominate such a market in any event, and rejected the contention that defendants had made entry more difficult. Thus, “no evidence has been presented to suggest market injury and, accordingly, antitrust standing has not been established.”

The court also held that plaintiffs provided no evidence of a conspiracy in restraint of trade. The court rejected the contention that there was an agreement to allocate the market among the promoter defendants, or that the booking agency defendants agreed together or with any promoter that the market should be so divided. The court also stated that none of the defendants had an economic rationale to participate in the alleged conspiracy, and that defendants’ acts were consistent with permissible competition. For example, the court viewed the defendant promoters’ promoting of concerts of the agencies’ less popular artists as an effort to obtain the agencies’ more popular artists that was consistent with permissible competition, rather than as evidence of actions against economic self-interest.

Plaintiffs’ civil rights claims were also dismissed on summary judgment.

Authored by:
Thomas D. Nevins