Antitrust Law Daily Wrap Up, ANTITRUST NEWS: Cubs respond to rooftop owners’ attempt to block outfield signs at Wrigley Field, (Mar 17, 2015)

By Linda O’Brien, J.D., LL.M.

Responding to an action to prohibit the Chicago Cubs from installing outfield signage, obstructing views of the field from nearby rooftops, the Cubs have filed an opposition to plaintiffs’ motion for preliminary injunction. In the underlying action, owners of rooftop businesses charge the Cubs and its team chairman with attempted monopolization and breach of contract (Right Field Rooftop, LLC v. Chicago Baseball Holdings, LLC, March 13, 2015).

Wrigley Field serves as the home of the Chicago Cubs professional baseball team. Since the stadium’s construction, several apartment buildings existed across from Wrigley Field from which spectators could view events taking place inside Wrigley Field. Neighboring property owners gradually transformed their flat-top roofs into bleacher-style grandstands and formed businesses to serve the market for viewing Cubs games and other Wrigley Field events from the rooftops. After then-Cubs-owner Tribune Company erected a large windscreen at Wrigley Field, affecting views from the rooftop businesses, the businesses filed suit. The Cubs and the rooftop businesses reached a settlement, under which the Cubs agreed not to erect barriers that would block the rooftop businesses’ views in return for a percentage of each rooftop’s gross revenues.

In 2009, the Ricketts family purchased the Chicago Cubs and Wrigley Field, subject to the rooftop license agreement. In January 2013, the Cubs announced plans to renovate Wrigley Field, including the installation of new outfield signage. In January 2015, neighboring rooftop businesses filed suit, alleging that the Cubs baseball club and team chairman Tom Ricketts attempted to monopolize the market for live games and violated the terms of the revenue-sharing contract by planning the installation of outfield signage that would block views from their businesses. On February 19, the plaintiffs’ motion for temporary restraining order was denied.

In response to the plaintiffs’ motion for preliminary injunction, the defendants argue that the plaintiffs cannot show they will irreparably harmed before trial in the absence of an injunction. A preliminary injunction is an extraordinary and drastic remedy that should not be granted unless the movant carries the burden of persuasion by a clear showing. The plaintiffs have no evidence of any business destruction before the litigation is resolved. Their argument that the rooftop businesses will become insolvent due to large mortgage payments and real estate taxes is misleading, according to the Cubs, since there was no evidence that the businesses hold any mortgages on the properties or pay any real estate taxes at all.

The ball club maintained that the rooftop businesses can stay in business and operate after a trial. The plaintiffs have presented no evidence that they have taken steps to prevent from becoming insolvent before the 2016 baseball season, the opposition asserted. The business owners have ample assets to avoid insolvency during any months of losses and still have liquor licenses to operate in that capacity for the short period until the litigation concludes. At most, the plaintiffs will suffer a temporary inconvenience, the defendants contended.

The defendants also contend that traditional legal remedies will adequately and fully compensate the plaintiffs for any harm that may occur through the course of the litigation. If the plaintiffs prevail, an amount for loss ticket sales would be simple to calculate and the plaintiffs’ businesses are set to end in a few years due to the fixed length revenue sharing agreement. Moreover, the plaintiffs cannot establish a likelihood of success, the team claimed. The revenue sharing agreement does not prohibit the outdoor signage, which was permitted as a government-approved expansion.

According to the response, the balance of equities favors the defendants. The plaintiffs sat on their legal rights for months before filing suit, which is inconsistent with a request for injunctive relief. They viewed a mockup of the sign in May 2013 and a model of the sign in July 2014, showing the impact that the sign would have on their views. Yet the plaintiffs waited until December 2014 to file a complaint and another three weeks to seek an injunction, it was argued. There is a strong public interest in enforcing a government-approved expansion promulgated in a project specific zoning ordinance, which followed a lengthy public debate and hearing where the plaintiffs undisputedly participated, the Cubs concluded.

Attorneys: Andrew A. Kassof, Daniel E. Laytin, and Diana M. Watral (Kirkland & Ellis LLP) for Chicago Baseball Holdings, LLC, Chicago Cubs Baseball Club, LLC, Wrigley Field Holdings, LLC, and Thomas S. Ricketts.

Companies: Right Field Rooftops, LLC; Right Field Properties, LLC; 3633 Rooftop Management, LLC; Rooftop Acquisition, LLC; Chicago Baseball Holdings, LLC; Chicago Cubs Baseball Club, LLC; Wrigley Field Holdings, LLC

News: Antitrust IllinoisNews