UNBIASED - May 23, 2024: DOJ Sues Live Nation for Illegal Monopoly, Supreme Court Issues Racial Gerrymandering Decision, Justice Alito Faces More Backlash for Second Flag, and More.

Episode Date: May 23, 2024

1. DOJ and Others Sue Live Nation-Ticketmaster Alleging Illegal Monopoly (0:38)2. Supreme Court Releases Three Decisions; Breaking Down Racial Gerrymander Case Alexander vs. South Carolina State Conference of the NAACP (4:22)3. Quick Hitters: Scottie Scheffler's Arresting Officer Faces Disciplinary Action for Not Turning on Body Cam During Arrest, Justice Alito Faces More Criticism After Pictures Surface of Second Flag, American Airlines Issues Statement After Court Filing Blamed Young Girl for Bathroom Recording (13:58)Watch this episode on YouTube.Follow Jordan on Instagram and TikTok.All sources for this episode can be found here.  Learn more about your ad choices. Visit podcastchoices.com/adchoices

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call the Conax Ontario helpline at 1-866-531-2600. BetMGM operates pursuant to an operating agreement with iGaming Ontario. Welcome back to Unbiased, your favorite source of unbiased news and legal analysis. Welcome back to Unbiased. Today is Thursday, May 23rd, and this is your final news rundown of the week. If you love the unbiased approach that this episode provides, you already know the drill. If you feel more informed after listening, share the show with your friends, leave me a review, all of those things really help me out. If you're watching on YouTube, you can, of course, hit that thumbs up button, subscribe to the channel. Those things really help as well. So thank you very much. Without

further ado, let's get into today's stories. Two main stories, and then we'll finish with quick hitters. In an unsurprising move today, the DOJ and 30 state and district attorneys general announced an antitrust lawsuit against Live Nation and Ticketmaster. The reason I say that it's unsurprising is because this has been rumored for at least a couple of months. The investigation has been going on since 2022. But here's what it's all about. When it comes to antitrust lawsuits, it's all about monopolization and restricting competition. So, or promoting competition, but accusing the companies of restricting competition. So in this case, the government is alleging that Live Nation Ticketmaster has a monopoly that is restricting competition in the market. It's depriving ticket

innovation, it's inflating costs, all of these negative things. According to the complaint, there are a variety of tactics that Live Nation Ticketmaster have imposed to weed out competition and maintain their monopoly. And this includes one tactic that Live Nation refers to as its flywheel. The DOJ says that the flywheel is Live Nation's business model that captures fees and revenue from concert fans and sponsorships, uses that revenue to lock up artists to exclusive promotion deals, and then uses its cachet of live content to sign venues into long term exclusive ticketing deals, thereby starting the cycle all over again. The complaint also details some financial retaliation threats that Live Nation has made to potential competitors and venues,

and also dives a little bit into Live Nation's acquisition of smaller regional promoters that Live Nation had internally identified as threats. As for Live Nation, it released a lengthy statement following the announcement of the lawsuit titled, Breaking Down the DOJ Lawsuit. And in this statement, Dan Wall, the executive vice president of corporate and regulatory affairs, writes, quote, the complaint and even more so the press conference announcing it attempt to portray Live Nation and Ticketmaster as the cause of fan frustration with the live entertainment industry. It blames concert promoters and ticketing companies, neither of which control ticket prices, for high ticket prices.

It ignores everything that is actually responsible for higher ticket prices, from increasing production costs to artist popularity to 24-7 online ticket scalping, that reveals the public's willingness to pay far more than primary tickets cost. It blames Live Nation and Ticketmaster for high service charges, but ignores that Ticketmaster retains only a modest portion of those fees. In fact, primary ticketing is one of the least expensive digital distributions in the economy. It is also absurd to claim that Live Nation and Ticketmaster are wielding monopoly power. The defining feature of a monopolist is monopoly profits derived from monopoly pricing. Live Nation in no way fits this profile. Service charges on Ticketmaster are no higher than elsewhere and frequently lower. It is also clear that we are another casualty of this administration's decision to turn over antitrust enforcement to a populist urge

that simply rejects how antitrust law works. Some call this anti-monopoly, but in reality, this is just anti-business, end quote. Live Nation's statement also makes mention of the fact that the Obama administration was the one that approved the merger between Live Nation and Ticketmaster, And at the time of that approval, the administration acknowledged that there was no legal basis for challenging the vertical aspects of the merger. So Live Nation says that the same conclusion that the Obama administration reached then applies today, and that this world is a better place because of the merger. That takes us into our second and potentially bigger news story of

the day, which is out of the Supreme Court. The justices released three decisions today, two making less waves than the third, but just so you know all three decisions. The first was in a case called Coinbase versus Soski, and this was a unanimous decision. It was written by Justice Jackson, and it held that when two parties have agreed to two different contracts, one contract that sends certain disputes to arbitration, and then a second contract that either explicitly or implicitly sends those same type of disputes to the courts, it is up to a court to decide which contract governs. The second decision was in a case called Alexander v. South Carolina Conference

of the NAACP. I'll elaborate more on that in a minute. That's what we'll spend our time focusing on. And the third decision today was in a case called Brown v. United States. Brown was a 6-3 decision written by Justice Alito, and it held that for purpose of the Armed Career Criminal Act, trial courts should look at the federal drug schedules rather than the state drug schedules that were in effect at the time of a state conviction when determining the definition of serious drug offense. Justice Jackson, Justice Kagan, and Justice Gorsuch dissented from the majority there. But let's focus on this case called Alexander v. South Carolina Conference of the NAACP because that was the biggest opinion of the day. This opinion was also written by Justice Alito. It was also a

6-3 decision. Justices Kagan, Jackson, and Sotomayor dissented, so this case or this opinion was very much along ideological lines. This case dealt with congressional districting maps and racial gerrymandering, specifically whether the drawing of South Carolina's congressional district one violated the constitution because it was the product of racial gerrymandering. And a little bit of background here, so congressional maps are redrawn every 10 years following the decennial census. In this case, following the 2020 census, the South Carolina legislature brought on this guy named Will Roberts to redraw the state's congressional districting map with the admitted

goal of increasing District 1's projected Republican vote share by 1.36%. Roberts did exactly that. The state legislature adopted the plan. The governor signed it into law. However, the NAACP challenged the plan as unconstitutional, alleging that it resulted in racial gerrymanders in certain districts, specifically 1, 2, and 5, and also that the map resulted in the dilution of the electoral power of the state's Black voters. So there were two claims here, a racial gerrymander claim and a vote dilution claim. And in ruling in the NAACP's favor, the district court rejected the plaintiff's claims for District 2 and 5, but held that the state had

drawn District 1 with a specific 17% Black voter age population target, and this unlawfully diluted the Black vote and violated the Equal Protection Clause. And in ruling this way, the district court said that while one of the legislature's motivation was to achieve Republican advantage in District 1, race was their predominant factor for sorting voters. The court found that, one, the legislature set this racial target of the Black voting age population of 17%. Two, the legislature implemented the target by sorting a significant number of voters based on race and disregarded their own traditional redistricting principles in doing so. Three, the legislature's claims that they ignored race were not credible. And four, expert evidence

confirmed that race better explained the movement of voters from one district to another than partisan affiliation. So taking all of this into account, the district court found that District 1 was a racial gerrymander. The state legislature then appeals, and on appeal, the legislature argued that the maps were drawn with politics in mind, not race, and that the plaintiffs had not met the demanding standard that is required in racial gerrymander cases. And just as an FYI, nothing prevents a state legislature from prioritizing politics when it comes to congressional redistricting. In fact, it's permissible, and in 2019, the Supreme Court held in a case called Rucho v. Common Cause that courts don't resolve claims

of partisan gerrymandering. They won't get involved. Now, we obviously know that politics and race are oftentimes very much correlated. So how do you differentiate? Here's what Justice Alito said in writing for the majority today. Alito said, because race and partisan preference are highly correlated, and the court has already said it does not intervene in claims of partisan gerrymandering, the party challenging a map's constitutionality must be able to disentangle race from politics to show that race was the legislature's predominant motivating factor. And on top of that, the court must start with a presumption that is sincerely driven by partisan goals would have drawn a different map with a greater racial balance. And the plaintiffs didn't do that here. They didn't provide a map. So Alito says, not only did the plaintiffs not

provide an alternative map for us, but the plaintiffs submitted weak circumstantial evidence of racial gerrymander, no direct evidence, and deeply flawed expert reports. Alito said that none of the evidence that the district court relied on to infer a racial motive is sufficient to overcome the presumption of legislative good faith that is required. So given all of this, the majority says that the plaintiffs did not meet the demanding standard that they needed to prove. Now, there's a few important notes to point out here before we get to the dissent. One, this was a fairly unusual racial gerrymandering claim in that it was brought on a constitutional basis, equal protection basis, and not on a Voting Rights Act basis. Most recent racial gerrymandering claims that we've seen have been brought under the Voting Rights Act, which generally applies when minority voters broadly don't have equal

representation. As an example, last term, the Supreme Court held that the Voting Rights Act required Alabama to draw a map that would give blacks in Alabama a majority in two of the state's seven districts rather than one. And this is based on the state's population of blacks and equal protection. And Alito left that door open in this case too. So it's possible that the maps are now challenged on a Voting Rights Act basis in the near future rather than this constitutional basis. But what this decision did is it reversed the court's ruling on the racial gerrymander claim, finding that the plaintiffs did not prove what they needed to, but remanded the case back to the district court on the vote dilution claim.

Because according to the majority, the district court applied the wrong analysis on the vote dilution claim, so they'll have to reassess that. So now the case will go back to the district court. The district court will reanalyze the vote dilution claim. The racial gerrymander claim is donealyze the vote dilution claim. The racial gerrymander claim is done, but the vote dilution claim remains. The difference there between those two claims, and as the majority put it in their opinion, is that a racial gerrymander claim asks whether race predominated in the drawing of a district. However, a vote dilution claim is

different in that the plaintiff has to show that the state's districting plan has the purpose and effect of diluting the minority vote, and arguably that may be an even harder standard, but we'll see what happens on remand. As for the dissent, Justices Jackson, Kagan, and Sotomayor were not happy with the majority's opinion. Justice Kagan wrote the dissent. It's 35 pages, and Sotomayor were not happy with the majority's opinion. Justice Kagan wrote the dissent. It's 35 pages, and it says in part, quote, The majority declares that it knows better than the district court what happened in a South Carolina map drawing room to produce District 1. But the proof is in the pudding.

On page after page, the majority's opinion betrays its distance from and lack of familiarity with the events and evidence central to this case. The dissent then continues, quote, As of today, courts must draw an adverse inference against those plaintiffs when they do not submit a so-called alternative map, no matter how much proof of a constitutional violation they otherwise present. Such micromanagement of a plaintiff's case is elsewhere unheard of in constitutional litigation. But as with its upside-down application of clear error review, the majority is intent on changing the usual rules when it comes to addressing racial gerrymandering claims. The proper response to this case is not

to throw up novel roadblocks, enabling South Carolina to continue dividing citizens along racial lines. It is to respect the plausible, no, the more than plausible findings of the district court that the state engaged in race based districting and to tell the state that it must redraw District 1 this time without targeting African American citizens, end quote. The Supreme Court will be releasing more opinions a week from today, so stay tuned for those. As I've said before, as we get closer to the end of June, the decisions get more and more controversial, typically. Let's finish with quick hitters. The Louisville police detective who arrested

Scottie Scheffler last Friday has been disciplined for not activating his body-worn camera at the time of Scheffler's arrest. Currently, there is no known footage of Scheffler interacting with police other than a dash cam recording about five seconds of Scheffler in handcuffs. It's not clear at this time whether the lack of body cam footage, or footage at all for that matter, will affect Scheffler's charges and prosecution. Justice Alito is catching heat for a second flag that was pictured this time flying at his New Jersey property. This time it was a flag known as an Appeal to Heaven flag or the Pine Tree flag. This was a flag that started with George Washington and the Revolutionary War. It has ties to religion, and it was seen

at the Capitol on January 6th. Speaker Mike Johnson also has one of these flags hanging outside his office. These new pictures are sparking renewed calls for Alito to step aside from Trump-related cases. And finally, American Airlines is speaking out after its insurance company's outside legal counsel put the blame on a little girl for not noticing a camera was recording her in the airplane bathroom. You may remember the recent case where an American Airlines flight attendant was caught filming little girls aged 7 to 14 in airplane bathrooms by taping his phone to the back of the toilet seat. A lawsuit was ultimately filed, and in its defense, the legal counsel representing American Airlines placed the negligence on the little girl,

saying she should have known the camera was there and on, considering it had the bright and blinding flash on. But yesterday, American Airlines issued a statement that said in part, quote, our outside legal counsel retained with our insurance company made an error in this filing. The included defense is not representative of our airline and we have directed it to be amended this morning. We do not believe this child is at fault and we take the allegations involving a former team member very seriously. End quote. That is what I have for you today. Just so you know, I will not be posting an episode on Monday. It's Memorial Day, so I am going to take that day off. But I will be back with you on

Tuesday. So have a fantastic Memorial Day weekend. And I will talk to you when I'm back.