June 13 was my birthday! Forty-seven trips around the sun and still going strong. And, most importantly, it's still fun. My mantra.
I’m a believer that “nostalgia is death,” and while we can have fond memories of days gone by, there is nothing quite like the present, amazing (and sometimes confusing) moment. Change scares most people because we’re all hardwired to seek the safety of the known – the static past is far more known than the dynamic future. I’m not a Pollyanna: the challenges we face are very real. I just think our human ingenuity will outpace the challenges unless we let fear and uncertainty paralyze us. My job as a lawyer requires this mindset: I’m trying to make sense of my client’s current legal needs, which are often full of risk and uncertainty. My job is to shape a known and certain future state for my clients. It's not easy but very rewarding when you get it right.
But sometimes there are seismic changes in our law and legal system, which really make people uncomfortable, with good reason. Trump’s indictment on criminal charges, trial, verdict, and, most importantly, reaction to it, is one of those seismic changes. We’re living through a watershed moment for the American legal system. The stakes are high and the future uncertain. But perspective matters, so I’ll share mine.
Speaking of nostalgia being death, I’m actually planning to catch 83-year-old Bob Dylan (my favorite artist of all time) and 91-year-old Willie Nelson in concert this summer. Forever Young indeed. My tickets to see two old crooners in cheap seats were $150 each! Let’s see why fans like me are getting squeezed, and if the government is going to be able to do anything about it.
At that, Happy Birthday to me, and read on!
Back in April 2023, when Trump was indicted, I actually thought this was an exceptionally weak case on the merits. The DA needed to prove not only that Trump falsified business records but that he did it with the intent to defraud someone, in this case apparently the American public (or at least New York voters) by hiding key facts about his extramarital affairs. I thought the case was weak because there were lots of reasons for Trump to falsify his business records that had nothing to do with the 2016 election. Maybe he just did not want his wife to know he had an affair, which seems perfectly reasonable and actually would have resonated with a Manhattan jury, I think (“this isn’t a plot to undermine democracy. . . this is the story of one sad man who made a terrible mistake, cheating on the wife he loves dearly. . .”). A little contrition would have gone a long way to beat what was a convoluted legal theory.
Unfortunately for Trump’s lawyers and for my prognosis, Trump does not do contrition. He is a narcissist who can never admit weakness and refused to admit that he even had the affair, so any defense that all the falsification of business records was for any reason other than defrauding voters went out the window. And when you’re clearly lying about something everyone assumes is true – that a 70-something Manhattan (maybe) billionaire was cheating on his 40-something model wife with prostitutes – a fact finder is going to be skeptical of almost everything else. Indignation is not a strategy, and you should resolve litigation by focusing on what matters, not expand it to put everything on trial. Basically, Trump violated almost every one of my rules of litigation. On the flip side, the District Attorney was disciplined and put on a great case, so kudos to them.
Turning from the merits of the case, there is a bigger story about our legal and political moment. I really dislike Donald Trump (that might be an understatement). The most dangerous thing about Trump is not that he is erratic and narcissistic (that's really annoying) but that he elevates rhetoric and belief over reason and facts. And somehow inspires and forces everyone else to do the same. That “feeling” that something is right or wrong rather than grounding decisions in facts poses a huge threat to our legal system.
Why? The foundation of our system of government here in the US is a belief that the people are the sovereigns – that ordinary people can apply their reasoning to a set of facts and come up with a rational response that transcends their own biases. Our system is not always consistent (two people can commit the same crime – say falsifying business records – and one be guilty and the other not), and reasoned fact-based decision-making takes a long time. After all, most litigators spend the majority of their time haggling over evidence and discovery, which is really just a determination of what facts get presented to the fact finder, and how. We all crave instant justice, which offers some sense of certainty, but despite its failings most Americans had faith in “the system.” Contrast that with a system where the justice system relies on the wisdom of a small group of “experts” or guardians of some ideal vision of the state like they have in one-party nations like China, or theocracies like Iran. Our system is much better.
We’re in a watershed moment because, after the Trump verdict, a large portion of this country seems to have stopped believing in a system where ordinary people bring their reasoning to a set of facts to come up with judgment. We’re being told that when faced with the same set of facts, a different jury with a different set of political beliefs would have made a very different judgment. If that is true, it's a death knell for our system of justice.
But I actually don’t think that is true – the facts here were so overwhelming and Trump’s defense so weak that I think he would have also been found guilty by a jury in rural Texas. Perhaps I have too much faith in Americans (or am just less of a partisan), but I can’t see how any jury would have let him off. In that sense, the system works and continues to work, although only time will tell.
But it leads to a very different question, which I think is actually harder: should the case have been brought in the first place? And this gets to the heart of the politization of our justice system. I think it's fair to say that this case would never have been brought in Texas or any other “red” state. I’m not talking about the decisions that prosecutors and regulators make about which prospective defendants to bring charges against. That’s just part of the system, and we always assume it’s based on the merits of the case and not the politics of the target. Prosecutors don’t bring cases they can’t win.
What I’m talking about is how prosecutors can choose to enforce some laws while letting others languish, which is another form of the politicization of the justice system, and something we seem to be wholesale embracing. Prosecutors in Florida are very vigilant about enforcing voter registration requirements but don’t seem to care much when protesters block access to abortion clinics. The Manhattan DA, Alvin Bragg, who made the decision to charge Trump with 34 counts of the Class E Felony (the lowest felony class in New York) of “Falsifying Business Records” has a policy of not prosecuting fare evasion on the New York City subway and buses, which happens to be a Class A misdemeanor of “theft of services” – the highest misdemeanor count in New York.
You might say that DA Bragg made a rational decision because falsification of business records, which could hurt investors and undermine faith in our system of corporate governance, has a more detrimental effect on New York County than the $690 million that the MTA loses every year in fare evasion. Maybe, but it's debatable. One thing is for certain: since most New Yorkers are far more likely to be caught not paying their fare than falsifying business records, the policy is undeniably popular. Personally, I would be very happy if it was the other way around and the DA enforced fare evasion while letting the civil justice system sort out falsification of business records. One less thing for my non-public transportation taking clients to worry about, I guess. But no one is making me the district attorney anytime soon.
That decision, to allow a whole category of crimes to be unenforced while putting massive resources into another category of crimes, is an insidious example of politics infiltrating our justice system and is not the way our justice system is supposed to work. Isn't it supposed to be up to the people to make these decisions? Both laws are on the books, the result of the representatives of the people of the State of New York on behalf of the people of the State of New York (me!) deciding that both things – theft of services and falsification of business records – are important to deter by punishing those people who are found guilty of them. We could make the subway free, or just come out and say payment is voluntary, but to simply not enforce the law because we don’t like it should not be an option.
The system is designed so that someone arrested for fare evasion should have to make their case to a fact finder – perhaps they are too poor to pay the fare, or maybe they just lost their wallet and phone and needed to get home somehow – just as Trump was trying to explain to the jury that although someone falsified his business records, he had nothing to do with it. The idea that it's OK to put millions of dollars into prosecuting a crime where we dislike defendants like Trump or some other allegedly business record falsifying lowlife, but simply ignoring a crime where we think the defendants are generally sympathetic (working people who need their money for something other than the subway fare, I guess), is an example of bending the law to suit a political or partisan purpose.
I think most people on the political left would cheer DA Bragg's decision to not enforce fare evasion but to prosecute Trump for falsifying business records, while most people on the right would say the opposite. That a statement of how profoundly different Americans, regardless of political leanings, now view the justice system: it’s all politics in another form.
One thing I get with age is perspective. It's easy to recognize and call out hypocrisy on the other side – amazing to see “law and order” and “blue lives matter” folks completely disavow those beliefs and undermine law enforcement when it comes to the Manhattan District Attorney's Office and the New York Court system (and the Capitol Police for that matter) – but harder to see hypocrisy in your own worldview. But that is the rationality and transcending of biases that a fact- and reason-based system of justice demands.
As someone who works in and uses our sprawling justice system for a living, I can say that despite all the flaws and annoyances, it's one of America’s greatest assets, and I’m proud to be a part of it. Losing it to political whims would be an irreversible travesty.
Ticket Prices are Too Damn High!
Concert season!
Those of you who know me know I go to lots of concerts. While I’m partial to smaller venues, mainly jazz clubs and some small indie places, every so often I find myself at one of New York City’s larger venues, either in an overpriced crappy seat or packed into some type of torturous standing general admission situation that I’ve paid like $60-$100 to experience when I could have spent $250 for a better experience but cheaped out, as always. As I crane my neck or try to defend the fractions of an inch of space I’ve carved out, I often wonder, “How did this get so expensive?”
The answer is likely the fact that the concert business in the US is a duopoly: LiveNation Entertainment (most famous for their ticketing service, Ticketmaster) and Anschutz Entertainment Group (“AEG”) pretty much control the market. At first glance, live entertainment is not the type of industry that lends itself to consolidation because it consists of several very different “businesses:” The venue, the band, the ticketing service, the tour, and the promotion. Nevertheless, over the years, those two companies have been able to buy up so many components of the live entertainment business that they can basically determine what bands play at what venues, how tickets are distributed, and, of course, the price everyone pays at every step of the process. It's been a creeping consolidation over the last 40 years, but here we are using crappy ticketing software to pay too much for a ticket.
One culprit has been lax enforcement of antitrust laws. Ticketmaster and LiveNation used to be two separate companies. LiveNation produced the concerts at venues it owned or controlled, and Ticketmaster ran the ticketing software. LiveNation was Ticketmaster’s biggest customer but, apparently tired of all the problems and high fees that might have been preventing people from going to concerts, and likely feeling they were leaving money on the table, they went to build their own ticketing system. But someone at LiveNation had an idea: why build our own system? Why not just buy Ticketmaster?
When LiveNation went to buy Ticketmaster back in 2010, the US Justice Department sued to block the deal on the grounds that LiveNation would then control too much of the “ticketing” market – the way venues get their tickets into the hands of event-goers because it was a merger of what the DOJ saw as the two largest ticketing platforms. But they let the merger go through anyhow on the condition that – get this – LiveNation license its ticketing software so competitors can use it. Monday morning quarterbacking is not my thing, but that was a massive fail.
Why? The problem was not that LiveNation would dominate the ticketing market, it was that LiveNation, which already owned (or had agreements with) lots of venues (“Local Promoters” in the parlance of the live music business), would basically require those venues to use its ticketing software. So while a venue would typically want to keep ticketing fees low and use a really great service that did things like prevent sales in the aftermarket and not crash under the weight of demand, LiveNation, which owned or had long-term agreements with the venue, and also owned the ticketing software, did not care. And LiveNation made lots of money on those Ticketmaster fees.
And, by the way, if you happened to be a venue owner who worked with another ticketing company, you might find yourself unable to book those acts who are managed by LiveNation's management companies. And LiveNation owns lots of management companies. Of course, whether LiveNation actually used its market dominance to punish venues that chose to work with another ticketing company needs to be proven. But it explains why so many venues not owned by LiveNation - like Madison Square Garden here in New York - keep using the really crappy Ticketmaster ticketing system rather than a competitor that would make their patrons happier. But it's also likely that there are not many competitors for MSG to use. Because who would bother when the market for non-Ticketmaster ticketing software is so small?
What's next? Well, let's hope that the DOJ can break up LiveNation. Then Ticketmaster would need to compete with other ticketing services, and I would not need to deal with Ticketmaster the next time I see Bob Dylan and Willie Nelson. Assuming there is a next time . . . but forever young.
Keep thinking, keep building,
Jesse
Hi, and welcome to my newsletter! I’m Jesse Strauss, Your Fractional General Counsel. I’m a lawyer with a private practice based in New York City, helping clients in the United States and globally with their US legal needs. My expertise spans various areas, including raising funding rounds, employment issues, negotiating master service agreements, intellectual property, compliance, legal process management, and dispute resolution. My focus is on founding and nurturing great companies from seed to exit. Discover more at www.yourfractionalgc.com and book a complimentary 30-minute consultation at Contact Your Fractional GC.
