The Show Must Go On – But Not Without Competition: DOJ Resolves Broadway Touring Antitrust Investigation with Non-Prosecution Agreement

On March 18, 2026, the Antitrust Division (Division) of the U.S. Department of Justice (DOJ) entered into a Non-Prosecution Agreement (“NPA”) with Broadway Across America (“BAA”), resolving a criminal antitrust investigation into agreements between BAA and another entertainment company (“Company A”) that included non-compete restrictions on Company A’s ability to offer potentially competing programming. Notably, the restrictions were contained in a vertical agreement by which BAA presented touring shows at theaters owned by Company A. The announcement is a reminder that the agencies continue to scrutinize non-compete agreements contained in business contracts, and all non-compete provisions, even those included between vertical partners, should be reviewed by antitrust counsel.

Broadway Across America’s Non-Compete Agreement

BAA presents touring Broadway shows in regional markets nationwide, including at theaters operated by Company A pursuant to a presentation contract. In December 2017, BAA and Company A renewed their presentation contract, including terms that restricted Company A from competing with BAA in the Broadway touring presentation services business across 44 cities in the United States and Canada. The agreement identified the 44 cities as BAA markets, including areas within 75 miles of each BAA venue, and listed categories of conduct that Company A could not engage in. Most notably, Company A agreed not to (1) present any touring Broadway show in any BAA market where BAA had presented in the prior three years, invested in, or developed plans to present; (2) hold any direct or indirect equity interest in any entity engaging in the prohibited activities; and (3) bid against BAA or enter into discussions with venues in BAA markets to acquire presentation rights while BAA was providing services to that venue. With respect to the agreement, BAA argued that it had acted upon good faith legal advice from its outside counsel. In 2022, the parties amended the presentation contract and removed the non-compete provision.

Factors Underlying the Non-Prosecution Agreement

The Division provided several reasons for entering into an NPA with BAA: BAA's full cooperation with the investigation, BAA's good-faith reliance on outside antitrust counsel regarding the legality of the 2017 Agreement, BAA's commitments to the Division going forward, and BAA's lack of prior criminal history. However, the Division made clear that BAA’s reliance on outside counsel’s advice that the agreement complied with the antitrust laws was “clearly erroneous,” and similarly, advice of counsel is not a cognizable defense to a general intent crime, such as a violation of 15 U.S.C. § 1.

As part of the NPA, the Division agreed not to bring criminal or civil charges against BAA, its affiliates, or any of their current or former officers, directors, managers, employees, or investors for any conduct disclosed by BAA. For its part, BAA must enhance its antitrust compliance policies and implement a company-wide training program designed to detect and prevent antitrust violations, and report on its progress to the Division at the conclusion of the NPA.

Practical Takeaways

The BAA NPA provides important lessons for companies, especially across industries where exclusive or restrictive agreements may be common:

• Market allocation is a per se antitrust violation. Companies should carefully scrutinize any agreement that restricts where or how a company may operate, including vertical agreements, to ensure that they do not run afoul of the antitrust laws. In another vertical relationship case involving the live entertainment industry, the Division charged Tim Lieweke, the former CEO of Oak View Group in 2025, for orchestrating a conspiracy to rig the bidding process for a public university arena. Lieweke was later pardoned by President Trump. 
• Cooperation and self-disclosure matter significantly. The Division places great emphasis on companies’ efforts to cooperate with investigations and remediate potential misconduct. In an effort to encourage greater disclosure, in July 2025, the Division announced a whistleblower rewards program in addition to its longstanding leniency program.
• Antitrust compliance programs are essential. The BAA case was resolved less than two weeks after the DOJ announced it had reached a tentative settlement of antitrust litigation against Live Nation, the concert giant that includes Ticketmaster, and the live entertainment sector remains of interest to enforcers. Companies should ensure their antitrust compliance programs are robust, proactive, and regularly updated.