Rooftop Response To Cubs' Motion To Dismiss

Case: 1:15-cv-00551 Document #: 41 Filed: 03/02/15 Page 1 of 92 PageID #:1397
IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
RIGHT FIELD ROOFTOPS, LLC,
d/b/a SKYBOX ON SHEFFIELD;
RIGHT FIELD PROPERTIES, LLC;
3633 ROOFTOP MANAGEMENT, LLC,
d/b/a LAKEVIEW BASEBALL CLUB; and
ROOFTOP ACQUISITION, LLC,
Plaintiffs,
v.
CHICAGO BASEBALL HOLDINGS, LLC;
CHICAGO CUBS BASEBALL CLUB, LLC;
WRIGLEY FIELD HOLDINGS, LLC; and
THOMAS S. RICKETTS,
Defendants.
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Case No. 15cv551

Hon. Virginia M. Kendall
Magistrate Judge Michael T. Mason
RESPONSE IN OPPOSITION
TO DEFENDANTS MOTION TO DISMISS
The plaintiffs, (i) Right Field Rooftops, LLC, d/b/a Skybox on Sheffield, (ii) Right Field
Properties, LLC, (iii) 3633 Rooftop Management, LLC, d/b/a Lakeview Baseball Club, and (iv)
Rooftop Acquisition, LLC (collectively, Plaintiffs), for their Response in Opposition to
Defendants Motion to Dismiss, submit the following:
TABLE OF CONTENTS
TABLE OF CONTENTSii
TABLE OF AUTHORITIES..iv
I.
OVERVIEW.......................1
II. STANDARD ON MOTION TO DISMISS...1

III. MAJOR LEAGUE BASEBALLS ANTITRUST EXEMPTION
DOES NOT APPLY..........................................................................................................2
IV. THERE IS A PLAUSIBLE RELEVANT MARKET
FOR PLAINTIFFS SHERMAN ACT CLAIMS.....8
V. THE CUBS ATTEMPTED TO REACH AN UNLAWFUL
SECTION I RESULT..23
A. Vertical Integration is a Basis for Antitrust Liability..25
B. Refusals to Deal and Denials of Access To Essential Facilities May Form
The Basis for Antitrust Liability..28
C. The Allegations in This Case Reflect A Plausible Antitrust Claim.35
D. The Defendants Case Law Is Inapplicable To These Facts40
VI. THE ANTICOMPETITIVE NATURE OF THE DEFENDANTS CONDUCT....45
VII. THE PLAINTIFFS HAVE A VIABLE ANTICIPATORY
BREACH OF CONTRACT CLAIM...53
A. The Four Corners Rule Rejects Literal Interpretations And Absurd Results...53
B. The Defendants Interpretation Calls For An Irrational, Absurd Result.57
C. The Cubs Cases Are Not Supportive Of Their Interpretation60
D. Parol Evidence Reaches the Same Result64
E. The City is Not the Final Arbiter.65
VIII. RICKETTS COMMITTED DEFAMATION PER SE...66
A. Ricketts Statement is Defamation Per Se...67
ii
B. Ricketts Statement is Verifiably False and Not a Protected Opinion.67

C. The Innocent Construction Rule Does Not Shield Ricketts Statement..71
IX. THE FALSE LIGHT CLAIM IS ACTIONABLE..75
X. THE PLAINTIFFS LANHAM, DECEPTIVE TRADE PRACTICE, AND
DECEPTIVE BUSINESS PRACTICE ACT CLAIMS ARE WELL PLED..76
XI. PLAINTIFFS CONTRACTUAL NON-DISPARAEMENT
CLAIM IS WELL-PLED..79
XII. CONCLUSION79
iii
TABLE OF AUTHORITIES
Cases
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Ashcroft v. Iqbal,
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Aspen Skiing v. Aspen Highlands Skiing,
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B. Sanfield, Inc. v. Finlay Fine Jewelry Corp.,
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Baldwin Piano, Inc. v. Deutsche Wurlitzer GmbH,
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Bank of America Natl. Trust and Sav. Assn v. Schulson,
714 N.E.2d 20 (Ill. App. 1999).54
Beanstalk Group, Inc. v. AM General Corp.,
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Beatrice Foods Co. v. F.T.C.,
540 F.2d 303 (7th Cir. 1976).10
Bell Atlantic Corp. v. Twombly,
550 U.S. 544 (2007).1
Board of Trade of City of Chicago v. United States,
246 U.S. 231 (1918)...24
Brown Shoe v. United States,
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iv
Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc.,

429 U.S. 477 (1977)...49
Bryson v. News America Publs., Inc.,
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Bourke v. Dun & Bradstreet,
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Byars v. Bluff City News Co., Inc.,
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Caribbean Broad. Sys., Ltd. v. Cable & Wireless PLC,
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Central States, Southeast, Southwest Areas Pension Fund v. Kroger Co.,
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Charles O. Kinney & Co., Inc. v. Kuhn,
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Chicago National League Baseball Club, Inc. v. Sky Box on Waveland, LLC,
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Chicago United Industries, Ltd. v. City of Chicago,
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Christy Sports, LLC v. Deer Valley Resort Co.,
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2015 WL 178358 (9th Cir. January 15, 2015)4
Coastal Abstract Serv., Inc. v. First Am. Title Ins. Co.,
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Continental Inc. v. GTE Sylvania Inc.,
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Deal v. United States,

508 U.S. 129 (1993)...56
Dispatch Automation, Inc., v. Richards,
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Dubinsky v. United Airlines Master Executive Council,
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Federal Base Ball Club of Baltimore, Inc. v. National League of Prof. Base Ball Clubs, et al.,
259 U.S. 200 (1922).2
Fishman v. LaSalle Nat. Bank,
274 F.3d 300 (1st Cir. 2001)..54
Flood v. Kuhn,
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Flynn v. Philip Morris USA, Inc.,
2006 WL 211823 (N.D. Ill. Jan. 19, 2006)22
Geneva Pharma. v. Barr Labs, Inc.,
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Global Disc. Trav. Svcs., LLC v. T.W.A., Inc.,
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Green v. Rogers,
917 N.E.2d 450 (Ill. 2009).70
Grengs v. Twentieth Century Fox Film Corp.,
232 F.2d 325 (7th Cir. 1956).26
vi
Henderson Broadcasting v. Houston Sports Assn.,

541 F. Supp. 263 (S.D. Tex. 1982)5
Hodges v. WSM, Inc.,
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Hooper v. California,
155 U. S. 648 (1895)..3
Hoppe v. Great Western Business Services, LLC,
536 F. Supp. 2d 888 (N.D. Ill. 2008).54
House of Brides, Inc. v. Alfred Angelo, Inc.,
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Intl Equip. Trading, Ltd. v. Ab Sciex, LLC,
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Imperial Apparel, Ltd v. Cosmos Designer Direct, Inc.,
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In re Apple & AT&T Antitrust Litigation,
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Institutional Foods Packing, Inc. v. Creative Prods., Inc.,
1992 WL 111133 (N.D. Ill. May 12, 1992)...27
Jack Walters & Sons Corp. v. Morton Bldg., Inc.,
737 F.2d 698 (7th Cir. 1984).26
Knafel v. Chicago Suntimes, Inc.,
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L.G. Balfour Co. v. F.T.C.,
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Lektro-Vend Corp. v. Vendo Co.,
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LePages Inc. v. Kroll Assocs, Inc.,
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vii
Lorain Journal Co. v. United States,

342 U.S. 143 (1951)...23
Madison v. Frazier,
539 F.3d 646 (7th Cir. 2008).67
McElroy v. B.F. Goodrich Co.,
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McDavid Knee Guard, Inc. v. Nike USA, Inc.,
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MCI Communications Corp. v. AT&T Co.,
708 F.2d 1081 (7th Cir. 1983)...33
Morningware, Inc. v. Hearthware Home Products, Inc.,
673 F. Supp. 2d 630 (N.D. Ill. 2009).76
Morris Commun. Corp. v. PGA Tour, Inc.,
364 F.3d 1288 (11th Cir. 2004).35
Muzikowski v. Paramount Pictures Corp.,
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National League of Prof. Baseball Clubs, et al. v. Federal Baseball Club of Baltimore,
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513 F.3d 1038 (9th Cir. 2008).9
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Olympia Equip. Leasing Co. v. Western Union Telegraph Co.,
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viii
Pampered Chef, Ltd. v. Alexanian,

2011 WL 6046896 (N.D. Ill. Dec. 5, 2011).......54
Port Dock & Stone Corp. v. Oldcastle Northeast,
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Portland Baseball Club, Inc. v. Kuhn,
491 F.2d 1101 (9th Cir. 1974).4
Postema v. National League of Prof. Baseball Clubs,
799 F. Supp. 1475 (S.D.N.Y. 1992)6
Reisner v. General Motors Corp.,
671 F.2d 91 (2nd Cir. 1982)...48
Robinson v. Shell Oil Co.,
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Rohlfing v. Manor Care, Inc.,
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Rohm and Haas Co. v. Dawson Chem. Co., Inc.,
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ix
Siemer v. Quiznos Franchise Company LLC,

2008 WL 904874 (N.D. Ill. Mar. 31, 2008)...21
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Solaia Technology, LLC v. Specialty Pub. Co.,
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Times-Piscayne Pub. Co. v. United States,
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Toolson v. New York Yankees, Inc., et al.,
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Toolson v. New York Yankees, Inc., et al.,
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Toolson v. New York Yankees, Inc. et al.,
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Tuite v. Corbitt,
866 N.E.2d 114 (Ill. 2006).74
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x
Utility Audit, Inc. v. Horace Mann Service Corp.,

383 F.3d 683 (7th Cir. 2004).54
United States v. Arnold, Schwinn, & Co.,
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United States v. Bethlehem Steel Corp.,
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xi
Statutes
15 U.S.C. 1..23
xii
I.
Overview
There is very little substance behind the Defendants Memorandum [Doc. 30] and
Opposition Brief [Doc. 27] which would support a Rule 12(b)(6) dismissal. Instead, there is
merely an amalgamation of one-sentence excerpts from one hundred fifteen (115) different
cases, none of which cases lend support for dismissal under the facts presented in this Complaint.
But the Defendants do not spend time dissecting any of their authority, and instead rely upon
their sweeping and broad, yet out-of-context recitations of law, to attempt to frame a coherent
argument for dismissal. Upon examination, it turns out that the Defendants supposed arguments
are without merit, and therefore their Motion to Dismiss should be denied.
II.
Standard on Motion to Dismiss

To survive a motion to dismiss under Rule 12(b)(6), a complaint need only state a claim
to relief that is plausible on its face. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
A claim has facial plausibility when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). This plausibility standard calls for a context-specific inquiry
that requires the court to draw on its judicial experience and common sense. Id. at 679. This is
not akin to a probability requirement, but the plaintiff must allege more than a sheer
possibility that a defendant has acted unlawfully. Id. at 678.
Plausibility in this context does not imply that a district court should decide whose
version to believe, or which version is more likely than not. Indeed, the Court expressly
distanced itself from such an approach in Iqbal. ([T]he plausibility standard is not akin to a
probability requirement.) Id. The Seventh Circuit has explained, As we understand it, the
[Supreme] Court is saying instead that the plaintiff must give enough details about the subject-
matter of the case to present a story that holds together. In other words, the court will ask itself
could these things have happened, not did they happen. Swanson v. Citibank, N.A., 614 F.3d
400, 404 (7th Cir. 2010).
III.
Major League Baseballs Antitrust Exemption Does Not Apply

The so-called baseball exemption from federal antitrust law does not apply to
individual team franchises. It also does not apply to matters which are not necessary to produce
the game on the field. For the reasons that follow, the baseball exemption offers the Defendants
no protection from the Sherman Act.
The baseball exemption was judicially created in Federal Base Ball Club of Baltimore,
Inc. v. National League of Prof. Base Ball Clubs, et al., 259 U.S. 200 (1922). The facts of that
case and most of the analysis adopted by the Court were provided in the circuit courts decision
on review, National League of Prof. Baseball Clubs, et al. v. Federal Baseball Club of
Baltimore, 269 F. 681 (D.C. Cir. 1920). Between 1913 and 1915, the Federal League operated
as a rival to the National and American Leagues. Id at 682. In 1915, the Federal league
disbanded when all of the teams, except Baltimore, either dissolved or merged into the National
and American Leagues. Id. Baltimore, the last remaining Federal League team, filed suit against
the National and American Leagues alleging, inter alia, that the leagues were engaged in
monopolistic, anti-competitive behavior in violation of the Sherman Act. Id at 682.
The circuit court stated,
A game of baseball is not susceptible of being transferred. The players, it
is true, travel from place to place in interstate commerce, but they are not
the game. Not until they come into contact with their opponents on the
baseball field and the contest opens does the game come into existence. It
is local in its beginning and in its end. Nothing is transferred in the process
to those who patronize it. The exertions of skill and agility which they
witness may excite in them pleasurable emotions, just as might a view of a
2
beautiful picture or a masterly performance of some drama; but the game

effects no exchange of things according to the meaning of trade and
commerce as defined above.
Id. at 684-85.
Justice Holmes delivered the opinion of the Supreme Court, writing:
But we are of opinion that the Court of Appeals was right. The business is
giving exhibitions of base ball, which are purely state affairs. It is true that
in order to attain for these exhibitions the great popularity that they have
achieved, competitions must be arranged between clubs from different
cities and States. But the fact that in order to give the exhibitions the
Leagues must induce free persons to cross state lines and must arrange and
pay for their doing so is not enough to change the character of the
business. According to the distinction insisted upon in Hooper v.
California, 155 U. S. 648, 655, 15 Sup. Ct. 207, 39 L. Ed. 297, the
transport is a mere incident, not the essential thing. That to which it is
incident, the exhibition, although made for money would not be called
trade of commerce in the commonly accepted use of those words.
259 U.S. 200, 208-09. Thus, from its earliest days, the baseball exemption only applied to
putting on the game, not to incidental matters.
A subsequent case involved the regulations which govern the structure of organized
baseball, and in particular, something known as the reserve system.1 Toolson v. New York
Yankees, Inc., et al., 101 F. Supp. 93 (S.D. Cal. 1951). In that case, the plaintiff, a baseball
player, was traded by one team to another, but he did not like the trade and refused to show up
and play for his new team. Id. Therefore, the league placed him on its ineligible list pursuant to
league regulations. Id. The trial court and Ninth Circuit essentially found that Federal governed.
Id.; Toolson v. New York Yankees, Inc., 200 F.2d 198 (9th Cir. 1952).
The reserve system comes from the reserve clause of a players contract in which the rights to the player were
owned by the team, which could reassign, trade, sell or release in its own discretion.
In a one paragraph per curiam decision, the Supreme Court affirmed, noting that the
business of providing public baseball games for profitwas not within the scope of the federal
antitrust laws. Toolson v. New York Yankees, Inc. et al., 346 U.S. 356, 357 (1953). Once again,
like in Federal, the decision centered on the league, league rules, and the game itself. Id.
More recently, in Flood v. Kuhn, 407 U.S. 258 (1972), the Supreme Court determined,
primarily on principles of stare decisis and congressional inaction, that Federal continued to be
good law with respect to major league baseballs reserve system, which permitted the league to
approve or veto player trades. Id. at 284-85. The Court noted recognition of the chaotic
conditions which prevailed in professional baseball when there was no reserve system. Id. at 272.
However, the Flood court also held that professional baseball was engaged in interstate
commerce, that the reserve system enjoys exemption from federal antitrust laws, this is an
exception and an anomaly, and Federal and Toolson have become an aberration confined to
baseball. Id. at 282.
After Flood, the Seventh Circuit decided Charles O. Kinney & Co., Inc. v. Kuhn, 569
F.2d 527 (7th Cir. 1978).
In that case, the court held that the Major League Baseball
Commissioners decision to void certain trades was within his power under the leagues
exemption from the Sherman Act. Id. at 541. Once again, the baseball exception was merely
applied to the league, and to league rules.
At least one court has questioned whether Flood limited the baseball exemption solely to
the reserve clause, holding that the exemption was at least slightly more expansive. City of San
Jose v. Office of the Commissioner of Baseball, 2015 WL 178358 (9th Cir. January 15, 2015). In
San Jose, the plaintiff challenged the leagues refusal to allow a team to relocate to another city.
Id. at 3-4. Citing its own earlier decision in Portland Baseball Club, Inc. v. Kuhn, 491 F.2d 1101
(9th Cir. 1974), the court rejected an interpretation of Flood that limited the baseball exemption
solely to the reserve clause. Id. at 1103. Instead, the court focused on Federal, and later Toolson,
which applied the exemption to the business of providing public baseball games for profit
between clubs of professional baseball players. San Jose, 2015 WL 178358 at *8. The court
reasoned,
The designation of franchises to particular geographic territories is the
leagues basic organizing principle. Limitations on franchise relocation are
designed to ensure access to baseball games for a broad range of markets
and to safeguard the profitabilityand thus viabilityof each ball club.
Interfering with franchise relocation rules therefore indisputably interferes
with the public exhibition of professional baseball.
Id. The San Jose court also stated, however, That doesnt necessarily mean all antitrust suits
that touch on the baseball industry are barred, referring to Twin City Sportservice, Inc. v.
Charles O. Finley & Co., 512 F.2d 1264 (9th Cir. 1975), allowing an antitrust claim between a
team and its stadium concessionaires to proceed Id. at 9. Regardless, even San Jose merely
involved a league policy, not the conduct of an individual team franchise. Moreover, league
restrictions on moving an entire team is conceptually similar to the reserve system governing the
moves of individual players, but unlike what happens across the street from a stadium.
Indeed, when asked to apply the baseball exemption to individual teams or incidental
activities, courts have decidedly refused. For example, in Henderson Broadcasting v. Houston
Sports Assn., 541 F. Supp. 263 (S.D. Tex. 1982), the plaintiff-radio station had a contract with
the owner of the Houston Astros, the Houston Sports Association (HSA), to radio broadcast
Houston Astros baseball games. Id. at 264. HSA also contracted with a rival radio station at the
time. Id.
The plaintiff sued the team, alleging a conspiracy to eliminate competition for
advertising revenue and audiences in an attempt to impose horizontal restraints on that radio
market. Id. In denying the teams motion to dismiss, the court held that the baseball exemption
did not apply because radio broadcasts were not central to the unique characteristics and needs
of the game (of baseball), which the baseball exemption was created to protect, and that radio
broadcasting was distinct and separate from the game itself. Id at 271.
Similarly, in Postema v. National League of Prof. Baseball Clubs, an umpire sued the
American and National Leagues (major league baseball divisions), and their minor league
counterpart, alleging that they were engaged in anti-competitive restraint-of-trade practices. 799
F. Supp. 1475, 1486-87 (S.D.N.Y. 1992), revd on other grounds, 998 F.2d 60 (2d Cir. 1993).
Specifically, a female umpire was denied promotion and eventually terminated by Major League
Baseball, allegedly because of her gender. Id. at 1478-80. The plaintiff alleged, inter alia, that
the American and National Leagues, and their minor-league counterpart, were engaged in anticompetitive practices, and filed a restraint of trade claim which defendants moved to dismiss
under the baseball exemption. Id at 1486.
Observing that Flood limited the scope of the exemption to the unique characteristics
and needs of baseball, the court in Postema held that the defendants could not avail themselves
of the exemption because the leagues relationship with its umpires was too remote to those
unique characteristics and needs of the game. Id at 1489. The court further held that, unlike
league structure or the reserve system, [B]aseballs relations with non-players are not a unique
characteristic or need of the game, and Anti-competitive conduct towards umpires is not an
essential part of baseball and in no way enhances its vitality or viability. Id. Similarly here,
baseball does not need video boards or jumbotrons to survive. And the Defendants relationship
with the Plaintiffs, non-players, are not a unique characteristic or need either.
Here, much like in Henderson with radio broadcasting, the viewing of a baseball game is
entirely incidental to the game on the field, which is what the baseball exemption narrowly
protects from antitrust scrutiny. In this case, the viewing of a baseball game from across the
street does not affect the product on the field, and thus it is incidental commerce not subject to
the baseball exemption. Without a doubt, Cubs games can be played regardless of whether there
are signs or Rooftop Businesses. And surely, if the leagues relationship with its umpires, who
actively participate in the game on the field calling balls and strikes, is not protected by the
baseball exemption as in Posterma, then a single teams (or its landlords) relationship with
downstream sellers of tickets and neighboring property owners is even more remote. The
audiences perception of a baseball game is incidental to the exhibition itself, and antitrust
exemptions do not extend to the tangential commerce arising therefrom. As recognized by
Federal, Nothing is transferred in the process [the game] to those who patronize [watch] it.
269 F. at 684-85. So saying that spectators need to see video boards is inapposite as well.
Furthermore, in a blatant attempt to mischaracterize and ignore the realities of the
baseball exemption, the Cubs completely fail to recognize that one of the defendants in this case,
Wrigley Field Holdings, LLC, is not even engaged in the business of organized baseball, but
rather it is in the business of owning and renting property to a baseball team. Wrigley Field
Holdings, LLC is not a member or affiliate of Major League Baseball or any other professional
baseball organization, and thus it surely cannot avail itself of the protections of the baseball
exemption.
The providing of facilities for rent, regardless of use, is not the business of organized
baseball. The commerce surrounding baseball is incidental to baseball, and it is the personal
effort not related to production that is exempted from antitrust legislation. Federal, 259 U.S. at
209.
Collecting rents from an organization desiring to use the playing field is, at most,
commerce merely incidental to baseball as contemplated by Justice Holmes. Starting nearly

every October, when other teams head to the playoffs, Wrigley Field suddenly becomes available
for a multitude of other events, including football games, hockey games, soccer matches and
concerts, none of which are even related to the game of baseball, but all of which assuredly
provide revenue to the owner of Wrigley Field. Such activities even occur before the Cubs lose a
playoff spot. For example, during the summer of 2015, musical groups including the Foo
Fighters, Billy Joel, and AC/DC, are all scheduled to perform at Wrigley Field. Unless a game is
taking place at the same time, this is certainly not the business of baseball. The baseball
exemption does not apply to the Cubs in this case, nor to its affiliates.
IV.
There is a Plausible Relevant Market for Plaintiffs Sherman Act Claims

It is patently untrue that, as a matter of law, a single brand of a product or service can
never be a relevant market under the Sherman Act. Eastman Kodak Co. v. Image Tech. Servs.,
Inc., 504 U.S. 451, 481 (1992). To the contrary, the Supreme Court stated, We disagree. The
relevant market for antitrust purposes is determined by the choices available [to consumers]. Id.
According to the Court in Kodak, a proper market definition can be determined only after a
factual inquiry into the commercial realities faced by consumers. Id. at 482. In making such a
determination, the market is composed of products that have reasonable interchangeability. Id.,
citing United States v. E.I. du Pont de Nemours and Co., 351 U.S. 377 (1956).
The concept of market determination, and more significantly submarkets, was most fully
explained by the Supreme Court in Brown Shoe v. United States, 370 U.S. 294 (1962). In Brown
Shoe, the Court expanded upon E.I. du Pont, stating,
The outer boundaries of a product market are determined by the
reasonable interchangeability of use or the cross-elasticity of demand
8
between the product itself and substitutes for it. However, within this
broad market, well-defined submarkets may exist which, in themselves,
constitute product markets for antitrust purposes.
The boundaries of such a submarket may be determined by examining
such practical indicia as industry or public recognition of the submarket as
a separate economic entity, the product's peculiar characteristics and uses,
unique production facilities, distinct customers, distinct prices, sensitivity
to price changes, and specialized vendors.
Id. at 325.
Discussing the submarket concept established by Brown Shoe, and more specifically in
the narrower context of single-brand markets, the court in In re Apple & AT&T Antitrust
Litigation explained, an antitrust plaintiff may allege a submarket, which must be
economically distinct from the general product market. Relatedly, a cognizable antitrust claim
can be based on allegations of a relevant market containing only a single brand of the product at
issue. 596 F. Supp. 2d 1288, 1302 (N.D. Cal. 2008). See also Newcal Indus. v. Ikon Office
Solution, 513 F.3d 1038, 1048 (9th Cir. 2008). (First, the law permits an antitrust claimant to
restrict the relevant market to a single brand of the product at issue.).
In Times-Piscayne Pub. Co. v. United States, the Supreme Court stated in a frequentlyquoted footnote,
For every product, substitutes exist. But a relevant market cannot
meaningfully encompass that infinite range. The circle must be drawn
narrowly to exclude any other product to which, within reasonable
variations in price, only a limited number of buyers will turn; in technical
terms, products whose 'cross-elasticities of demand' are small. Useful to
that determination is, among other things, the trade's own characterization
of the products involved. The advertising industry and its customers, for
example, markedly differentiate between advertising in newspapers and in
other mass media.
345 U.S. 594, fn. 31 (1953).
For antitrust purposes, product cross-elasticity and
interchangeability have the same meaning. Christou v. Beatport, LLC, 849 F. Supp. 2d 1055,
1065 (D. Colo. 2012).
Furthermore, The emphasis is always on the actual dynamics of the market rather than
rote application of any formula. Geneva Pharma. v. Barr Labs, Inc., 386 F.3d 485,496 (2nd
Cir. 2004). In Geneva Pharma, for example, the appellate court determined, in reliance on the
Brown Shoe factors, that generic warfarin sodium was a distinct product from name-brand
warfarin sodium, called Coumadin. Id. at 496. Of particular importance in this determination
was the fact that the generics were 70% less expensive than Coumadin, and yet a substantial
number of customers remained loyal to name-brand Coumadin after the generic was made
available. Id. at 496-97. The appellate court stated, That this group has remained loyal despite
Coumadins conspicuously higher prices strongly suggests inelastic demand. Id. at 497. The
court expanded,
Here we find a substantial gap in pricing indicative of separate markets.
Nor do we treat pricing as dispositive, but rather use pricing trends as one
indicator of the impact each market participant has on overall price and
outputCustomers that have remained with Coumadin clearly do not
perceive generics to be a reasonable substitute for it.
Id.
Submarkets were also considered by the Seventh Circuit in Beatrice Foods Co. v. F.T.C.,
540 F.2d 303 (7th Cir. 1976). Relying on Brown Shoe, the court in Beatrice stated, The mere
fact that several products are limited substitutes for one another and thus form a broad product
market is not dispositive of whether they form a relevant product market for antitrust purposes.
Id. at 308-09. (Concluding that while aerosol paint and spray painting equipment were
10
interchangeable with brushes and rollers for some uses, they could also form distinct submarkets
for purposes of the antitrust laws).
Also relying on Brown Shoe, the Seventh Circuit again recognized submarkets in
Sargent-Welch Scientific Co. v. Ventron Corp., 567 F.2d 701 (7th Cir. 1978). In Sargent-Welch,
the court explained, The area of effective competition may be a small submarket supplying
specialized products or services. Id. at 710. Furthermore, the goal is to delineate markets
which conform to areas of effective competition and to the realities of competitive practice. Id.
In making this determination of submarkets, the Sargent-Welch court first cited the criteria
identified above as announced by Brown Shoe, and furthered, a market definition which
ignores the buyers and focuses on what the sellers do, or theoretically can do, is not meaningful.
Sargent-Welch, 567 F.2d at 710. (Yet the unmistakable imprint of the evidence is that
competition was not significant.) See also L.G. Balfour Co. v. F.T.C., 442 F.2d 1 (7th Cir.
1971) (We agree with the court in United States v. Bethlehem Steel Corp., 168 F. Supp. 576
(S.D.N.Y. 1958), that any test which ignores the buyers and focuses on what the sellers do, or
theoretically can do, is not meaningful.)
The supply side of the market is, of course, also a factor. Substitutability in production
refers to the ability of firms in a given line of commerce to turn their productive facilities toward
the production of commodities in another line because of similarities in technology between
them. A & A Disposal and Recycling, Inc. v. Browning-Ferris Indus. of Ill., Inc., 664 N.E.2d
351 (Ill. App. 2nd Dist. 1996) (applying federal antitrust precedent). In A & A Disposal, the
court concluded that commercial garbage collection was reasonably interchangeable with
residential garbage collection because the same equipment, personnel and companies handled
both types. Id. at 354-55.
11
Many other cases have found separate, or submarkets, where there were even somewhat
interchangeable products. For example, in Rohm and Haas Co. v. Dawson Chem. Co., Inc., the
court found that the rice herbicide product, propanil, was a separate market from other rice
herbicides, despite the fact that the other rice herbicides performed the same function as
propanil. 557 F. Supp. 739, 839 (S.D. Tex. 1983). It made such a finding because there were
differences relating to the timing of the application, cultural practices, and the effectiveness of
each. Id. Despite the presence of these other herbicides in the market place, propanil remains
the herbicide of choice of rice farmers, and no other herbicide has supplanted propanil.
Consequently, the Court is of the opinion that no herbicidal substitutes exist which are
reasonably interchangeable with propanil. Id. (The court found that there was some, but not
enough cross-elasticity between propanil and other herbicides to expand the product market
definition to all rice herbicides.) Id. at 839.
It is readily apparent that the determination of the marketplace, and of submarkets within
larger marketplaces, turns on the application of the Brown Shoe factors to the facts of a particular
case. According to then-Circuit Judge Sotomayor, in reversing a trial courts dismissal of an
antitrust complaint, Because market definition is a deeply fact-intensive inquiry, courts hesitate
to grant motions to dismiss for failure to plead a relevant product market. Todd v. Exxon Corp.,
275 F.3d 191, 199-200 (2nd Cir. 2001). To survive a Rule 12(b)(6) motion to dismiss, an
alleged product market must bear a rational relation to the methodology courts prescribe to
define a market for antitrust purposes-analysis of the interchangeability of use or the crosselasticity of demand, and it must be plausible. Id. at 200. See also Christou, 849 F. Supp. 2d at
1066 (same); Intl Equip. Trading, Ltd. v. Ab Sciex, LLC, 2013 WL 4599903, at *6 (N.D. Ill.
Aug. 29, 2013) (same). Cross-elasticity of demand, according to the Todd court, exists if
12
consumers would respond to a slight increase in the price of one product by switching to another
product. 275 F.3d at 202.
Since determination of a market or submarket is a deeply fact-intensive inquiry, an
antitrust complaint should not be dismissed if a plaintiff alleges enough factual matter, taken as
true, which nudges their claim across the line from conceivable to plausible. House of Brides,
Inc. v. Alfred Angelo, Inc., 2014 WL 64657, at *6 (N.D. Ill. Jan. 8, 2014). The Complaint in this
case contains substantial, detailed and well-pleaded facts which, if true, satisfy all the Brown
Shoe elements to establish a relevant product market or submarket. The Complaint alleges the
following market facts:
COUNT I
116.
The relevant market in this Count I is the market for watching Live Cubs Games,
which consists of consumers who pay money to watch live-action Cubs Games, in
person, as the games take place on the field at Wrigley Field.
117.
For each Live Cubs Game event, there are a total of 44,160 tickets available. The
Cubs Organization can sell up to 41,960 Live Cubs Games tickets at retail per
event, and the Competitor Rooftops can sell up to 2,200 Live Cubs Games tickets
at retail per event.
118.
The Cubs therefore have over 93% of the market for retail sales of the Live Cubs
Games Product, which constitutes a monopoly share of the market for the Live
Cubs Games Product.
119.
There are no reasonable substitutes for the Live Cubs Games Product. The Cubs
Television Product involves a limited number of cameras which typically focus
on limited aspects of a Cubs Game, such as the pitcher, the batter, and the play of
the baseball. Consumers of the Cubs Television Product have no ability to see
other action on the field at any given moment, such as infield and outfield player
positioning, coaching signals, or bullpen activity. The Cubs Radio Product offers
an even less reasonable substitute for the Live Cubs Games Product, as literally
nothing can be viewed on a radio and consumers of the Cubs Radio Product have
no input on what the announcer describes.
120.
Attendance at other live sporting events is also not a reasonable substitute for the
Live Cubs Games Product, and thus tickets to other events are not reasonably
interchangeable with tickets for the Live Cubs Games Product. In professional
13
sports, members of the consumer public are generally fans of a specific team,
often based on their geographic location or upbringing, and thus when they want
to see a live Cubs game, they are unlikely to patronize another teams live games,
especially those of bitter rivals such as the Chicago White Sox, even if those other
teams tickets are much less expensive.
121.
Geographically, the market for the Live Cubs Games Product consists of just
Wrigley Field and the sixteen total Rooftop Businesses located on the 3600 block
of North Sheffield Avenue and on the 1000 block of West Waveland Avenue, all
in Chicago, Illinois.
122.
There are significant barriers to any newcomers attempting to join in the retail
market for the Live Cubs Games Product. To begin with, nobody else can sell
tickets inside Wrigley Field, which has a limited capacity. Furthermore, there are
only three parcels on Sheffield Avenue and Waveland Avenue which presently do
not have Rooftop Businesses, none of which are well-suited to possess a Rooftop
Business.
123.
Other significant barriers to any retail newcomers to the Live Cubs Games
Product market are: (i) the difficult and complex permitting process with the City,
(ii) the extremely high cost of construction versus return-on-investment, (iii) the
refusal of the Cubs Organization to enter into new rooftop license agreements
with any new competitors, and (iv) the ongoing construction by the Cubs
Organization which threatens to install signage which will effectively block any
newcomers views into Wrigley Field.
124.
Despite the Cubs Organizations 93% monopoly share of the Live Cubs Games
Product, the Rooftop Businesses have partially challenged the ability of the Cubs
Organization to charge monopoly prices for the Live Cubs Games Product tickets,
as there is sometimes capacity in excess of demand for the Live Cubs Games
Product.
125.
The Cubs Organization has acknowledged that the Competitor Rooftops are its
direct competitors in the Live Cubs Games Product market, and that the
Competitor Rooftops do challenge the Cubs Organizations ability to increase
prices for the Live Cubs Games Product.
126.
The Cubs Organization has repeatedly complained that the Competitor Rooftops
have been successful in challenging ticket prices for the Live Cubs Game Product.
131.
Elimination of the Competitor Rooftops will further diminish the competition in

the Live Cubs Games Product market by reducing the total number of Live Cubs
Game Product tickets that are available per event, increasing the Cubs
Organizations total market share, and permitting the Cubs Organization to
increase the prices it charges consumers in the Live Cubs Game Product market.
14
133.
If unchecked, the Cubs Organizations anticompetitive conduct will adversely

affect consumers by reducing competition in the Live Cubs Games Product
market, reduce choice among consumers from whom they purchase the Live Cubs
Games Product, and lead to increased prices for the Live Cubs Games Product.
COUNT II
152.
There is another market, the watching of live Cubs Games as they take place from
the Rooftop Businesses (the Live Rooftop Games Product). But unlike the
Cubs Radio Product and the Cubs Television Product, which are only sold by the
Cubs Organization at the distributor level to retailers who then sell those products
to consumers, the Cubs Organization sells the Live Rooftop Games Product both
at the distributor level and also at the retail level.
153.
Specifically, the Cubs Organization sells up to 800 Live Rooftop Games Product
tickets, per event, at retail directly to consumers at the Rooftop Businesses it owns
(the Cubs Rooftops). The Cubs Organization also sells up to 2,200 Live
Rooftops Games Product tickets, per event, at the distributor level to twelve
competitor Rooftop Businesses who then compete with the Cubs Organization
(the Competitor Rooftops) at the retail level for consumers of the Live Rooftops
Games Product.
154.
Consequently, the Cubs Organization is a vertically integrated enterprise which

manufactures the Live Rooftop Games Product, distributes the Live Rooftops
Games Product to Competitor Rooftop retailers, and also sells the Live Rooftop
Games Product at the retail level with tickets to Cubs Rooftops in direct
competition with Competitor Rooftops.
155.
The Cubs Organization, through its Cubs Rooftops, and the 12 unaffiliated
Competitor Rooftops, are direct competitors in the sale of the Live Rooftop
Games Product, at the retail level, to Live Rooftop Games Product consumers.
156.
The Wrigley Tickets Product is not reasonably interchangeable with the Live
Rooftop Games Product.
157.
The relevant market in this Count II is the market for the Live Rooftop Games
Product, which consists of individuals and groups of consumers who pay money
to watch live-action Cubs Games from Rooftop Businesses, in person, as the
games take place on the field at Wrigley Field.
158.
There are no reasonable substitutes for the Live Rooftop Games Product. The
Cubs Television Product involves a limited number of cameras which typically
focus on limited aspects of a Cubs Game, such as the pitcher, the batter, and the
play of the baseball. Consumers of the Cubs Television Product have no ability to
see other action on the field at any given moment, such as infield and outfield
player positioning, coaching signals, or bullpen activity. The Cubs Radio Product
15
offers an even less reasonable substitute for the Live Rooftop Games Product, as
literally nothing can be viewed on a radio and consumers have no input on what
the announcer describes.
159.
Tickets to Live Rooftop Games are also not reasonably interchangeable with
tickets to watch live action baseball from inside Wrigley Field. In addition to
offering a different vantage point from which to view a live Cubs game, the Live
Rooftop Games Product typically includes an all-you-can-eat and all-you-candrink menu, for a flat fee, which has not historically been available from inside
Wrigley Field.
160.
The Live Rooftop Games Product is also not reasonably interchangeable with
tickets to watch live action baseball from within Wrigley Field because many of
the Rooftop Businesses offer an interior lounge-like atmosphere for private
groups of hundreds of people, along with numerous flat-screen televisions
showing the baseball action, which is not available inside Wrigley Field.
161.
There are very few retailers of the Live Rooftop Games Product only the four
Cubs Rooftops and the twelve Competitor Rooftops. Geographically, the market
for Live Rooftop Games consists of just the 3600 block of North Sheffield
Avenue, and the 1000 block of West Waveland Avenue, in Chicago, Illinois.
162.
There are only 3,000 tickets for the Live Rooftop Games Product available for
each Cubs game. Of this total, and as of January 6, 2015, the Cubs Organization,
through the Cubs Rooftops, controls 800 tickets, and the Competitor Rooftops
control 2,200 tickets. The Cubs Organization thus controls 26.6% of the Live
Rooftop Games Product market.
163.
Prior to January 6, 2015, the Cubs Organization only owned one Rooftop
Business, and therefore only controlled 6.6% of the market for the Live Rooftops
Games Product.
164.
There are significant barriers to any newcomers attempting to join in the market
for the Live Rooftop Games Product. There are only three parcels on Sheffield
Avenue and Waveland Avenue which presently do not have Rooftop Businesses,
none of which are well-suited to possess a Rooftop Businesses.
165.
Other significant barriers to any retail newcomers to the Live Rooftop Games
market are: (i) the difficult and complex permitting process with the City, (ii) the
extremely high cost of construction versus return-on-investment, (iii) the
indication that the Cubs Organization will not enter into new rooftop license
agreements with any new competitors, and (iv) the ongoing construction by the
Cubs Organization which threatens to install signage which would effectively
block any newcomers views into Wrigley Field.
16
169.
Elimination of the Competitor Rooftops will diminish the competition in the Live
Rooftops Games Product market by reducing the total number of Live Rooftops
Games Product tickets that are available per event, increasing the Cubs
Organizations total market share in the Live Rooftops Games market, and
permitting the Cubs Organization to increase the prices it charges consumers in
the Live Rooftops Game Product market.
170.
If the new outfield signage is installed, there is a dangerous likelihood that the
Cubs Organization will succeed on its attempt to monopolize the Live Rooftops
Games Product market. Eliminating the Plaintiff Rooftop Businesses alone will
result in 400 fewer retail tickets for the Live Cubs Games Product, per event, and
increase the Cubs Rooftops market share in the Live Rooftops Games Product
market to 30.7%.
171.
Furthermore, the Cubs Organizations anticompetitive conduct was aimed

squarely at, and had a dangerous probability of successfully, eliminating all
Competitor Rooftops and thereby result in the Cubs Organization obtaining 100%
of the market for the Live Rooftops Games Product market.
172.
If unchecked, the Cubs Organizations anticompetitive conduct will adversely

affect consumers by reducing competition in the Live Rooftops Games Product
market, reduce choice among consumers from whom they purchase the Live
Rooftops Games Product, and lead to increased prices for the Live Rooftops
Games Product.
The Brown Shoe elements of: (i) distinct customers, (ii) distinct prices, (iii) sensitivity to
price changes, and (iv) public recognition, all support a distinct product markets as separate
economic entities. Many of these factors are supported by easily proven facts. In 2014, the Cubs
had an average home-game attendance of 32,742 fans. Exhibit 1. Also in 2014, the Cubs
average ticket price was $44.16, and their average premium ticket price was $110.49. Exhibit 2.
At the same time, the Chicago White Sox averaged just 20,896 fans for their home games in
2014. Exhibit 1. During 2014, the average ticket price for a Chicago White Sox ticket was just
26.05, and their average premium ticket price was just $86.94. Exhibit 2.
Unquestionably, sports fans in Chicago are extremely brand-loyal. Based upon empirical
evidence, Cubs fans will not attend a White Sox game despite an average ticket price costing
59% more than a White Sox game. Notably, this phenomenon occurs in other large cities with
17
two professional major league baseball teams. For example, the New York Yankees had an
average ticket price of $51.55 in 2014, with an average premium ticket price of $305.39. Exhibit
1. The New York Mets had an average ticket price of just $25.30 and an average premium ticket
price of $83.78 during this same time. However, the Yankees managed to sell an average of
42,520 tickets per home game, while the Mets only sold 26,860 tickets per home game. Exhibit
1. Just like in Chicago, empirical evidence reflects that major league baseball fans are extremely
team-loyal, and will not attend another teams baseball game, even in the same city, despite a
nearly 50% difference in prices. Geneva Pharma is directly on point and supportive of a distinct
market based on these factors. The Defendants suggestion that its fans would rather go to a
White Sox game to save money is false, and at best a question of fact.
Cross-elasticity of demand, exists if consumers would respond to a slight increase in
the price of one product by switching to another product. Todd, 275 F.3d at 202. There is no
cross-elasticity of demand between Cubs and White Sox tickets, arguably the next closest thing.
Empirical data supports the conclusion that the Cubs have distinct customers, distinct prices,
public recognition of the distinct product, and that their customers do not attend supposed
competitors events to save money, even with substantial price differences.
Furthermore, there are myriad examples of the major league baseball industry
recognizing separate markets. For example, there are blackout policies which prohibit teams
from broadcasting their games in certain markets. Additionally, the Major League Constitution
establishes distinct operating territories and prohibits other teams from entering those territories.
Exhibit 3.
Turning to another Brown Shoe element, viewing live Cubs games has a peculiar
characteristic and use. The Complaint contains well-pled allegations demonstrating that fans
18
cannot see all the live, on-field action through any medium other than attending a live Cubs
game at Wrigley Field or the Rooftop Businesses. With a limited number of cameras, only one
of which is active at any given moment, television viewers and radio listeners cannot see what is
taking place throughout the playing field, such as coaching signals or player positioning. They
also cannot tell a television station which camera to activate at a particular moment, so they
cannot decide what part of the game they want to watch they are usually stuck with the pitcher
or batter. The product markets may be similar, but they are, at most, submarkets of a larger one.
There are also Brown Shoe unique production facilities, in this case Wrigley Field and the
surrounding area, including the Rooftop Businesses. One need not look any further than the fact
that Wrigley Field has been landmarked, and a significant component of that landmark status is
the uninterrupted sweep looking out over the walls and into the neighborhood at the Rooftop
Businesses. It is not possible to enjoy these elements of the live event market by watching
television or listening to the radio, and these unique elements cannot be enjoyed at a White Sox
game or any other sporting event.
Finally, in considering whether a plaintiff has stated a plausible claim for purposes of a
motion to dismiss, courts should draw upon their experience and common sense. Ashcroft v.
Iqbal, 556 U.S. 662, 664 (2009). The plaintiffs submit that this Courts common sense and
experience as a member of the Chicagoland community should support the notion that the Cubs
have a dedicated and loyal fan base, that Cubs fans and White Sox fans are bitter rivals, and that
Cubs fans will not flock to U.S. Cellular field to save a few bucks, not even to save 50% of their
ticket dollars. Moreover, the Cubs have managed to become the fourth most valuable team in
baseball, with the highest operating income of any major league team. Exhibit 4.
19
Each and every one of the Brown Shoe factors strongly support the conclusion that there
is a distinct Live Cubs Games product market. Whether that market is characterized as a
submarket of all major league baseball games, or a submarket of all live sporting events in
the Chicago metropolitan area, versus its own primary market, is not significant at this stage and
can be determined with the aid of discovery and experts. What is significant is that the live event
market has industry and public recognition as a separate economic entity, the product has
peculiar characteristics and uses, it has unique production facilities, distinct customers, distinct
prices, there is no sensitivity to price changes in comparison with other teams or events, and
certainly specialized vendors just the Cubs and the Rooftop Businesses. This is all well-pled
plausibility.
The Cubs rely on House of Brides, Intl Trading, Siemer, Flynn and Rohlfing, for the
sweeping proposition that courts routinely dismiss single-brand antitrust cases. [Doc. 30, p. 5.]
But the Cubs also admit that each of those cases were dismissed because the plaintiffs did not
provide enough factual support to make it plausible that there was no substitute product. That is
far from the case here.
In House of Brides, the plaintiff tried to establish that one designers brand of wedding
gowns was a separate market from other designers gowns. 2014 WL 64657, *5 (N.D. Ill. Jan. 8,
2014). But that plaintiff merely offered a conclusory allegation that many customers would only
buy the AA brand, regardless of price. Id. at *6. Not surprisingly, the trial court dismissed that
case because there were no back-up factual allegations, just conclusions. Id. at *7.
More
significantly, the trial court had given the plaintiff an opportunity to amend its complaint, and
even the amended complaint lacked more factual substance on substitutability. Id. at *11.
20
The Complaint in this case is nothing like the original or amended complaint in House of
Brides. Here, the Plaintiffs have submitted facts with respect to why live Cubs games differ
from television and radio, and also that sports fans are highly brand loyal and will not attend
other events. This takes the Plaintiffs claims from merely conceivable to highly plausible.
Furthermore, notice pleading does not require the Plaintiffs to supply all of their evidence in their
Complaint. However, if the Court found it necessary for the Plaintiffs to amend their Complaint
in order to supply more facts on substitutability, the information set forth above concerning
ticket pricing, attendance levels, consumer and industry recognition, would all support a highly
plausible, relevant market.
The Cubs reliance on Intl Equip. Trading, Ltd. v. Ab Sciex LLC, 2013 WL 4599903
(N.D. Ill. Aug. 29, 2013), is also misplaced. In that case, the plaintiff attempted to exclude
competitors from its market definition, but admitted in its complaint that there were competitive
alternatives to the product in question and that customers actually bought from competitors. Id. at
*4. This Court stated, There is no dispute that a relevant market can be limited to a single
brand; rather, the question is whether the plaintiff adequately alleged that there are no
interchangeable substitutes to that single brand. Id. at *4. Just because one plaintiff does not
sufficiently allege something in one case does not mean the Plaintiffs did not here.
Siemer v. Quiznos Franchise Company LLC likewise offers no help to the Cubs
argument. 2008 WL 904874 (N.D. Ill. Mar. 31, 2008). In that case, the court found that the
plaintiffs, Quiznos franchisee-operators, could have simply selected to be a pizza or other fast
food franchisee-operator if they did not like the terms of their supply agreement with Quiznos.
Id. at *10-11. The relevant market in that case was consequently the market for becoming a fast
21
food operator, not the market for Quiznos franchisee-operators to buy their supplies solely from
Quiznos pursuant to contract. Id. No logical relationship to Siemer exists here.
Flynn v. Philip Morris USA, Inc. is even easier to distinguish. 2006 WL 211823 (N.D. Ill.
Jan. 19, 2006). In Flynn, the plaintiff installed cigarette displays, and attempted to establish a
market that only included him. Id. at *1, 5. The trial court had an obvious problem with this
proposal, in the absence of any facts to show why nobody else could possibly provide that
service in Florida. Id. at *5. And in Rohlfing v. Manor Care, Inc., the court simply concluded
that if a nursing home resident did not like their nursing homes sales of pharmaceuticals, the
residents could simply have chosen to live in a different nursing home in the area, all of which
were reasonably interchangeable. 172 F.R.D. 330, 346-47 (N.D. Ill. 1997). Simply none of these
cases support the proposition that an antitrust complaint should be dismissed where there is a
plausible single-brand market theory.
This case is also nothing like Global Disc. Trav. Svcs., LLC v. T.W.A., Inc., 960 F. Supp.
701 (S.D.N.Y. 1997). In that case, the plaintiff wanted to establish a single-brand market,
airplane tickets on a particular airline between particular cities. Id. at 701, 705. The court
focused on the rule of interchangeability, concluding that the market needed to include all
airlines that offered tickets between the same cities. Id. at 704-05. At its base, the court found
that the purpose of an airline ticket was to get a consumer from point A to point B. Id. Those
consumers might prefer one airline over another, but the products provided the same service. Id.
at 705-06.
The decision in Global is readily distinguishable. The very purpose of an airline ticket is
travel from A to B. In other words, people do not fly for the sake of flying. People do not wake
up and decide that their entertainment for the day will be a flight on T.W.A. because they like the
22
pillows, the views, or the airplane food. People fly to get from A to B, and that function is
provided by many interchangeable airlines. This is entirely unlike Cubs games, where people
desire to watch a Cubs game for the sake of seeing the Cubs play. They do not go watch a Cubs
game because they need to perform some utility. The Cubs notion, on page 7 of their Motion to
Dismiss, that their fans will go see a minor league baseball game to satisfy their appetite for
baseball, instead of going to a Cubs game, is laughable. It is also insulting to their dedicated fans
who have gone over 100 years without a World Series title, still flocking in droves to shell out
big bucks to catch a Cubs game and making the Cubs the most valuable and profitable team in
baseball despite abysmal performance. To accept the Cubs argument would be to accept that
Cubs baseball is entirely fungible with all other sporting events, including White Sox baseball
a conclusion that defies history and tradition, as well as demonstrable attendance and ticket price
statistics. There is an abundance of plausible facts to establish a market here, and one highly
questions whether the Cubs would even attempt to make such an argument at trial in light of the
damage they would cause to their loyal fan base.
V.
The Cubs Attempted to Reach an Unlawful Section 1 Result

Section 2 of the Sherman Act prohibits attempts to reach the ends outlawed by section 1
of the Act. Lorain Journal Co. v. United States, 342 U.S. 143, 153-54 (1951). The Cubs appear
to be arguing that, regardless of whether they engaged in the conduct Plaintiffs allege, and
assuming a relevant market exists, their success would not constitute a violation of section 1.2
Therefore, an exploration of section 1 is required. Read literally, section 1 states: Every
contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or
commerce among the several States, or with foreign nations, is declared to be illegal. 15 U.S.C.
For section 2 attempt cases, it is the attempt that is the offense, even if unsuccessful. Lektro-Vend Corp. v. Vendo
Co., 660 F.2d 255, 270-71 (7th Cir. 1982)
23
1. But, Since the early years of this century a judicial gloss on this statutory language has
established the rule of reason as the prevailing standard of analysis. Continental Inc. v. GTE
Sylvania Inc., 433 U.S. 36, 49 (1977).
In Board of Trade of City of Chicago v. United States, the Court stated the rule of reason
as follows:
The true test of legality is whether the restraint imposed is such as merely
regulates and perhaps thereby promotes competition or whether it is such
as may suppress or even destroy competition. To determine that question
the court must ordinarily consider the facts peculiar to the business to
which the restraint is applied; its condition before and after the restraint
was imposed; the nature of the restraint and its effect, actual or probable.
The history of the restraint, the evil believed to exist, the reason for
adopting the particular remedy, the purpose or end sought to be attained,
are all relevant facts. This is not because a good intention will save an
otherwise objectionable regulation or the reverse; but because knowledge
of intent may help the court to interpret facts and to predict consequences.
246 U.S. 231, at 238 (1918). As explained in Continental, Under this rule, the factfinder
weighs all of the circumstances of a case in deciding whether a restrictive practice should be
prohibited as imposing an unreasonable restraint on competition. Id.
The Cubs argue that they should be shielded from antitrust liability because the soughtafter results were: (i) to take over the distribution of their product, or in other words, vertically
integrate; and (ii) to select who they do business with or refuse to do business with, and refrain
from aiding their competitors. [Doc. 30, pp. 8-12.] These sweeping generalities, and the cases
cited by the Cubs attempting to support same, are replete with exceptions which give rise to
antitrust liability under the facts in this case. And while the Cubs selectively provide a few
good-sounding case law quotes, they omit the however from those cases, as well as the facts
and reasoning behind those quotes, while at the same time ignoring the more significant, more
24
on-point cases (usually from higher courts) which establish that their goals are anticompetitive
and actionable.
A. Vertical Integration Is A Basis For Antitrust Liability
In Continental the Supreme Court specifically held that the rule of reason applied to
vertical restriction cases. 433 U.S. at 58. (When anticompetitive effects are shown to result from
particular vertical restrictions they can be adequately policed under the rule of reason, the
standard traditionally applied for the majority of anticompetitive practices challenged under 1
of the Act.) So the Cubs are patently mistaken in claiming that vertical restrictions cannot form
a basis for antitrust liability. 3
Indeed, many cases recognize the potential evils of vertical integration for antitrust
purposes. For example, the Supreme Court found a Sherman Act violation under a vertical
integration theory in United States v. Paramount Pictures, Inc. et al, 334 U.S. 131 (1948). In
Paramount, the Court stated,
In the opinion of the majority the legality of vertical integration under the
Sherman Act turns on (1) the purpose or intent with which it was
conceived, and (2) the power it creates and the attendant purpose or intent.
First, it runs afoul of the Sherman Act if it was a calculated scheme to gain
control over an appreciable segment of the market and to restrain or
suppress competition, rather than an expansion to meet legitimate business
needs.
Id. at 174. The Court also stated, Likewise bearing on the question of whether monopoly power
is created by the vertical integration, is the nature of the market to be served, and the leverage on
the market which the particular vertical integration creates or makes possible. Id. The decision
Also dismissive of the Cubs argument that vertical integration is never an antitrust violation, it is
noteworthy that vertical integration was actually a per se violation of the Sherman Act for a decade, beginning
with the Supreme Courts decision in United States v. Arnold, Schwinn, & Co., 388 U.S. 365 (1967). It was
not until Continental that the Court returned to the rule of reason for vertical integration cases and instructed
courts to look to pre-Schwinn cases for guidance. Continental, 433 U.S. at 59.
25
in Paramount has been cited without negative treatment by the Seventh Circuit. See Grengs v.
Twentieth Century Fox Film Corp., 232 F.2d 325 (7th Cir. 1956).
Furthermore, vertical
integration was likewise recognized as a viable theory in Jack Walters & Sons Corp. v. Morton
Bldg., Inc., 737 F.2d 698 (7th Cir. 1984), a case the Cubs rely on for the opposite conclusion.
The Cubs cite several cases in which vertical integration was rejected as a plausible basis
for antitrust liability, but such rejection was only because of the facts of those cases, and not a
blanket rejection of the theory itself. In fact, an analysis of those very cases cited by the Cubs
actually reveal why this case involves a strong vertical integration theory. For example, in Jack
Walters, the Seventh Circuit plainly explained that vertical integration is usually not an improper
objective, because it is usually procompetitive. Id. at 710. The court identified a number of procompetitive factors commonly associated with vertical integration, such as: cost savings when a
company performs for itself what it used to pay others to perform, and placing pressure on
former service providers to be more competitive for the costs of their. Id. On the other hand, the
Jack Walters court also noted that there are some concerns about monopolistic firms which
might vertically integrate in order to deny supplies or outlets to competitors. Id. The court only
rejected the vertical integration theory in that case, because nothing of that kind is suggested
here. Id. at 711.
A highly informative analysis of the pros and cons of vertical integration was performed
in Byars v. Bluff City News Co., Inc., 609 F.2d 843 (6th Cir. 1979). That court explained,
In theory, a monopolist will only take over lower level operations if it is at
least as efficient as the lower-level firm. In other words, a monopolist will
only vertically integrate if it can do the job cheaper than having someone
else do it. If the lower level firm, (i.e. a distributor) is more efficient, it
should be able to sell more and thus increase the monopolistmanufacturers sales.
.
26
And to the extent that economies of scale result from the vertical
integration, then the consumer will benefit. The monopolist will reap
more profit, but the optimal monopoly price to the consumer will be
lower.
Id. at 861. The court in Byars then cautioned, There are situations, however, where a refusal to
deal as part of a vertical integration scheme is anticompetitive. Id. It is for the district judge, as
fact finder [it was a bench trial case], to analyze the evidence and make a determination whether
[the defendants] cut-off of [the plaintiff] was justifiable on efficiency grounds. Id. at 862.
This exact same reason, but under different facts, supported the trial courts dismissal of
the plaintiffs case in Institutional Foods Packing, Inc. v. Creative Prods., Inc., 1992 WL 111133
(N.D. Ill. May 12, 1992). There, the court stated, A refusal to deal only becomes unreasonable
when it produces an unreasonable restraint on trade. Id. at *3. Plaintiff has not alleged that
Creatives conduct will have an unreasonable restraint on trade. Id. Vertical integration is
usually pro-competitive rather than anticompetitive. Id. (emphasis added).
The Plaintiffs in this case, unlike the plaintiffs in Jack Walters and Institutional Foods,
do allege many facts showing that the Cubs conduct will have an unreasonable restraint on
trade, and that the conduct is anticompetitive, not procompetitive. Specifically, the Plaintiffs
allege that the Cubs are trying to reduce (through acquisition or elimination) competition in the
downstream market, for the purpose of raising prices and reducing the number of alternative
sellers for consumers to choose from. The Cubs are not trying to increase efficiency and lower
costs in order to sell more products by lowering their end prices, they want the opposite. They
already admitted they cannot compete with the Rooftop Businesses margins the Cubs cannot
compete on a level playing field with the Rooftops. The Cubs needed to resort to more illicit
conduct to achieve their improper ends. These are well-pled facts which rise to the level of
27
plausible something the plaintiffs failed to achieve in the cases cited by the Cubs, and like in
Bryer, it should be up to a finder of fact.
B. Refusals to Deal and Denials of Access to Essential Facilities May Form the Basis for
Antitrust Liability
Vertical integration is unlawful in certain circumstances. The question thus becomes
whether the Cubs have the right to refuse to do business with the Plaintiffs under the facts
alleged in this case, or as they frame it, whether the Cubs have a duty to aid their competition.
The answer to this question turns on the Cubs intent and means employed to achieve that
intended result. Under the facts of this case, the Cubs do not have the right to use their
monopoly power in the upstream market, which includes owning the Cubs and Wrigley Field, to
eliminate their existing competitors in the downstream market through anticompetitive conduct,
as opposed to better business acumen.
According to the Supreme Court, Monopoly power is the power to control prices or
exclude competition. E.I. du Pont, 351 U.S. at 391. To prevent monopolization, 2 [of the
Sherman Act] addresses the actions of single firms that monopolize, or attempt to monopolize, as
well as conspiracies and combinations to monopolize. Spectrum Sports, Inc. v. McQuillan, 506
U.S. 447, 454 (1993). The Court in Spectrum continued,
Consistent with our cases, it is generally required that to demonstrate
attempted monopolization a plaintiff must prove (1) that the defendant has
engaged in predatory or anticompetitive conduct with (2) a specific intent
to monopolize and (3) a dangerous probability of achieving monopoly
power.
Id. at 456.
Anticompetitive conduct comes in many forms. In fact, the Sherman Act does not define
predatory or anticompetitive conduct. As noted by the Third Circuit, Anticompetitive
conduct can come in too many different forms, and is too dependent upon context, for any court
28
or commentator ever to have enumerated all the varieties. LePages Inc. v. Kroll Assocs, Inc.,
324 F.3d 141, 152 (3rd Cir. 2003) (citing Caribbean Broad. Sys., Ltd. v. Cable & Wireless
PLC, 148 F.3d 1080, 1087 (D.C.Cir.1998)).
One recognized form of anticompetitive or exclusionary conduct is a monopolists
refusal to deal or refusal to cooperate. One of the earliest refusal to deal cases was United
States v. Terminal R.R. Assn, 224 U.S. 383 (1912), which involved twenty four different
railroads converging at St. Louis, Missouri. Id. at 399. Six of the railroads acted together to
acquire a terminal which, as a practical matter, no railroad could pass through St. Louis or cross
the Mississippi River without using. Id. These six railroads contracted amongst themselves to
prohibit any non-members of their association from using the terminal. Id.
Finding a Sherman Act violation, the Court in Terminal explained,
But when, as here, the inherent conditions are such as to prohibit any other
reasonable means of entering the city, the combination of every such
facility under the exclusive ownership and control of less than all of the
companies under compulsion to use them violated both the first and
second sections of the act, in that it constitutesan attempt to monopolize
commerce among the states which must pass through the gateway at St.
Louis.
Id. at 409. The Court thus remanded the case to the district court with directions to enter a
decree providing for the admission of any other railroad company (to use the terminal) upon
equal terms with the existing members of the terminal association. Id. at 411. Thus, the Supreme
Court ordered private landowners to share their essential facility, their private property, with
others.
In 1951, the Supreme Court again considered a refusal-to-deal form of anticompetitive
conduct in Lorain Journal. 342 U.S. at 143. In Lorain Journal, the sole newspaper in Lorain
County, Ohio had an effective monopoly on mass media advertising until a radio station began
29
operating nearby. Id. at 150. When the radio station entered the market and began to sell
advertising time on the air, the newspaper refused to accept newspaper advertising from
companies that also advertised on the newcomer radio station. Id. at 148. The lower court
expressly found that the purpose and intent of this procedure was to destroy the broadcasting
company. Id. at 148-49. The lower court also found that, the very existence of [the radio
station] is imperiled by this attack upon one of its principal sources of business. Id. at 149.
The Court held that this conduct was an attempt to monopolize interstate commerce by
reducing the number of advertising customers available to the radio station. The refusal to deal
strengthened the newspapers existing monopoly in the advertising market, and more
significantly, [it] tended to destroy and eliminate [the radio station] altogether. Id. at 149-50;
153. The Lorain Journal Court also affirmed the lower courts issuance of injunctive relief,
explaining that, The injunctive relief under [the Sherman Act] sought to forestall that success.
While [the newspapers] attempt to monopolize did succeed insofar as it deprived [the radio
station] of income, [the radio station] has not yet been eliminated. The injunction may save it.
Id. at 153. The Court concluded, It is consistent with that result to hold here that a single
newspaper, already enjoying a substantial monopoly in its area, violates the attempt to
monopolize clause of 2 when it uses its monopoly to destroy threatened competition. Id. at
154.
Consequently, in Lorain Journal, the Supreme Court again, like in Terminal, told a
private company that it did not have an unfettered right to refuse to deal with others. After
Lorain Journal, the Supreme Court considered another refusal to deal case in Otter Tail Power
Co. v. United States, 410 U.S. 366 (1973). In Otter Tail, a power company: (i) generated
electricity, (ii) transmitted its own and other generators electricity over intermediary networks,
30
and (iii) sold electricity at retail in 465 towns over its municipal-level grids. Id. at 368-70. When
several municipalities decided to operate their own municipal-level grids, the power company
refused to sell the municipalities power at wholesale rates, and also refused to transmit or
wheel power from other generators to the municipalities over its intermediary networks. Id.
Having been unable to renew its contracts to operate the municipal-level grids in those towns,
Otter Tail simply refused to deal, although according to the findings it had the ability to do so.
Id. at 371.
The Court found,
The record makes abundantly clear that Otter Tail used its monopoly
power in the towns in its service area to foreclose competition or gain a
competitive advantage, or to destroy a competitor, all in violation of the
antitrust laws. The District Court determined that Otter Tail has "a
strategic dominance in the transmission of power in most of its service
area," and that it used this dominance to foreclose potential entrants into
the retail area from obtaining electric power from outside sources of
supply. Use of monopoly power "to destroy threatened competition" is a
violation of the "attempt to monopolize" clause of 2 of the Sherman Act.
Id. at 377. Once again, the Supreme Court told a private enterprise that it had to share its private
property, an exclusive facility, with its competitors.
The Courts decision in Aspen Skiing v. Aspen Highlands Skiing, 472 U.S. 585 (1985), is
also significant and instructive. In Aspen, four adjacent ski resorts had coexisted for years with
different owners, and had jointly marketed an all mountain ski pass that allowed consumers to
ski any of the four competitor mountains with a single lift ticket. Id. at 589-90. During the life of
the all-mountain pass, the competing companies would distribute income amongst each other
based upon surveys or counting methods which determined how frequently the passes were used
at each mountain. Id.
31
Eventually, Ski Co. acquired control over three of the four resorts, and its president
thereafter expressed the view that the 4-area ticket was siphoning off revenues that could be
recaptured by Ski Co. if the ticket was discontinued. Id. at 592. Therefore, Ski Co. offered an
unreasonably low, fixed percentage of total all-mountain revenue to Highlands, the smaller
competitor. One member of Ski Co. candidly admitted that Ski Co. made Highlands an offer
that [it] could not accept. Id. This effectively left Highlands, the smaller competitor, with the
ability to sell its customers and patrons with tickets to just one mountain. Id. at 592-93. With Ski
Co.s effective discontinuation of the all-mountain pass, Highlands attempted to compete for
retail customers by creating an Adventure Pack to replace the all-mountain pass. Highlands
purchased Ski Co.s tickets at retail, and then bundled those tickets with its own tickets. Id. at
593-94. To counter this, Ski Co. simply refused to sell Highlands any Ski Co. passes, even at
retail rates. This doomed the Adventure Pack, and made it effectively impossible for
Highlands to compete in the Aspen ski market. Id. at 594.
The Aspen Court focused on whether one competitor ever has a duty to cooperate with its
rivals. The Court started its analysis by explaining that, The central message of the Sherman
Act is that a business entity must find new customers and higher profits through internal
expansion -- that is, by competing successfully rather than by arranging treaties with its
competitors. Id. at 600, citing United States v. Citizens & Southern National Bank, 422 U.S. 86
(1975). The Court continued,
Ski Co., therefore, is surely correct in submitting that even a firm with
monopoly power has no general duty to engage in a joint marketing
program with a competitor. Ski Co. is quite wrong, however, in suggesting
that the judgment in this case rests on any such proposition of law. For the
trial court unambiguously instructed the jury that a firm possessing
monopoly power has no duty to cooperate with its business rivals.
32
The absence of an unqualified duty to cooperate does not mean that every
time a firm declines to participate in a particular cooperative venture, that
decision may not have evidentiary significance, or that it may not give rise
to liability in certain circumstances. The absence of a duty to transact
business with another firm is, in some respects, merely the counterpart of
the independent businessman's cherished right to select his customers and
his associates. The high value that we have placed on the right to refuse to
deal with other firms does not mean that the right is unqualified.
Id. at 600-601.
Citing Lorain Journal, the Court explained that a private business right to refuse to deal
with others is prohibited by the Sherman Act where that right is exercised purposefully to
monopolize interstate commerce. Id. at 602.
By changing a long-standing, and profitable
business practice with its competitor, the Court found sufficient evidence in the record to support
the jurys verdict that a Sherman Act violation had occurred. Id. at 604. (The jury must,
therefore, have drawn a distinction between practices which tend to exclude or restrict
competition on the one hand, and the success of a business which reflects only a superior
product, a well-run business, or luck, on the other.). The Court went on to note, If a firm has
been attempting to exclude rivals on some basis other than efficiency, it is fair to characterize
its behavior as predatory. Id. at 605.
A number of other refusal-to-deal cases similarly involve one party seeking to compel its
monopolist competitor to share something that the monopolist owns, which the first party
needs in order to compete. In MCI Communications Corp. v. AT&T Co., AT&T controlled the
telephone lines and infrastructure that connected long distance lines to peoples homes. 708 F.2d
1081, 1093-96 (7th Cir. 1983). MCI, a newcomer to the long-distance telephone market, wanted
AT&T to connect MCIs long distance network to peoples homes over AT&Ts lines and
infrastructure, so that MCI could compete with AT&T in selling long-distance telephone service.
Id. AT&T was generally unwilling to share its network resources with its new competitor. Id.
33
When AT&T did provide access, it did so on unequal footing with the access it provided to itself.
Id.
Citing Otter Tail and Lorain Journal, the Seventh Circuit explained,
A monopolist's refusal to deal under these circumstances is governed by
the so-called essential facilities doctrine. Such a refusal may be unlawful
because a monopolist's control of an essential facility (sometimes called a
"bottleneck") can extend monopoly power from one stage of production to
another, and from one market into another. Thus, the antitrust laws have
imposed on firms controlling an essential facility the obligation to make
the facility available on non-discriminatory terms.
The case law sets forth four elements necessary to establish liability under
the essential facilities doctrine: (1) control of the essential facility by a
monopolist; (2) a competitor's inability practically or reasonably to
duplicate the essential facility; (3) the denial of the use of the facility to a
competitor; and (4) the feasibility of providing the facility.
Id. at 1132-33. Affirming the trial courts decision that a Sherman Act violation had occurred,
the Seventh Circuit reasoned, the evidence supports the jury's determination that AT&T
denied the essential facilities, the interconnections for FX and CCSA service, when they could
have been feasibly provided. No legitimate business or technical reason was shown for AT&Ts
denial of the requested interconnections. Id. at 1133. Furthermore, MCI produced sufficient
evidence at trial for the jury to conclude that it was technically and economically feasible for
AT&T to have provided the requested interconnections, and that AT&Ts refusal to do so
constituted an act of monopolization. Id.
The Seventh Circuit considered a refusal to deal in the context of an essential facility in
Olympia Equip. Leasing Co. v. Western Union Telegraph Co., 797 F.2d 370 (7th Cir. 1986). In
Olympia, the court stated,
Some cases hold, however, that a firm which controls a facility essential to
its competitors may be guilty of monopolization if it refuses to allow them
access to the facility. We accept the authority of these cases absolutely.
They are well illustrated by Otter Tailwhere a wholesale supplier of
34
electricity refused to supply electric power to a power system that

competed with it in the retail electrical power market and had no other
source of supply.
Id. at 376. The Olympia court continued, If a competitor is also a customer his relationship to
the monopolist is not only a competitive one. The monopoly supplier who retaliates against his
customers who have the temerity to compete with him, by cutting such customers off, is severing
a collateral relationship in order to discourage competition. Id. The court in Olympia found for
the defendant because there was a legitimate and clear business justification for its business
decision to refuse to cooperate it simply wanted to get out of the sale business and liquidate its
remaining inventory. Id. at 378.
Initially, the burden is on a defendant to show a valid business justification for refusing to
deal. Morris Commun. Corp. v. PGA Tour, Inc., 364 F.3d 1288, 1295 (11th Cir. 2004). If the
defendant makes such a showing, then the burden shifts to the plaintiff to show that the
purported justification is pretextual. Id. This is necessarily a factual question not properly
decided on a motion to dismiss. Byars, 609 F.2d at 862. Moreover, A monopolists selfserving, Ex post facto business justifications must be examined with care. Id. at 863.
As set forth below, the Cubs admitted that they are trying to exclude the Plaintiffs on
some basis other than efficiency. The Cubs admitted that the Plaintiffs were direct competitors.
The Cubs admitted that they wanted more money through higher prices on the backs of
consumers. The Cubs admitted that they could not compete with the Plaintiffs margins. The
Cubs admitted that they wanted to control the Rooftops to control and increase prices. The Cubs
used private property exclusively in their control to destroy the Plaintiffs and achieve their
unlawful goals.
35
C. The Allegations of Fact in this Case Reflect A Plausible Antitrust Claim

The Complaint alleges the following facts, all of which must be taken as true for purposes
of a motion to dismiss:
i.
Plaintiffs own and operate Rooftop Businesses and underlying real estate, from
which tickets to watch live Cubs games and other live Wrigley Field events are
sold to consumers. [Complaint, Doc. 1, 1-4.]
ii.
Plaintiffs pay the Cubs Organization 17% of their gross revenue in return for a
license to sell tickets to watch these Cubs games and other live events. [Doc. 1,
40.]
iii.
The Cubs Organization, previously not owning any Rooftop Businesses, began to
acquire Rooftop Businesses in 2009. [Doc. 1, 44, 47.]
i.
In 2009, Cubs Organization acquires interest in Rooftop Business Down the

Line. [Doc. 1, 47.]
ii.
In 2011, Cubs Organization attempts to acquire Rooftop Business Lakeview Club.

[Doc. 1, 50.]
iii.
In 2011, Cubs Organization engages individual Rooftop Business owners in

separate purchase negotiations. [Doc. 1, 49.]
iv.
Late 2011 Early 2012, Cubs Organization seeks approval from City to install
signs. [Doc. 1, 50.]
v.
May 8, 2012 Ricketts and other Cubs Organization executives met with Rooftop
Business owners, calling the Rooftop License Agreement a bad deal for the
Cubs Organization because the parties were involved in a price war and a race
to the bottom on ticket prices. Cubs Organization complains about Rooftop
Businesses selling discount tickets, thereby reducing demand for tickets inside
Wrigley Field. [Doc. 1, 52-55.]
vi.
May 8, 2012 Ricketts and other Cubs Organization executives demand that
Rooftop Businesses agree on coordinated, minimum ticket prices, or be blocked
by signs, stating whatever you give us is in return for not being blocked. [Doc.
1, 52-55.]
vii.
June of 2012, Lufrano suggests the Rooftop Businesses and Cubs Organization
create a management firm with power to set ticket prices. Sugarman tells
Anguiano that the Rooftop Businesses need to raise revenue for the Cubs
Organization or be blocked. [Doc. 1, 55-56.]
36
viii.
September, 2012 Cubs Organization rejects proposal from Rooftop Businesses

to permit large signs on top of Rooftop Businesses, to let Cubs Organization
control such signage and give 100% of sign revenue to Cubs Organization. [Doc.
1, 70.]
ix.
February 4, 2013 Ricketts tells Rooftop Businesses that they are direct
competitors with the Cubs Organization, complains that Rooftop Businesses sell
tickets too inexpensively, and complains this is hurting Cubs Organizations
Wrigley Field ticket sales. [Doc. 1, 62]
x.
April 15, 2013 Following Rooftop Businesses ongoing refusal to fix ticket
prices, Cubs Organization makes good on threats to block Rooftop Businesses,
and announces 6,000-square-foot jumbotron and 1,000-square-foot advertising
sign. [Doc. 1, 65.]
xi.
May 1, 2013 Ricketts complains in speech at City Club of Chicago that Rooftop
Businesses are direct competitors and criticizes them for selling discounted
tickets, blames Rooftop Businesses for causing $20 million in annual lost
revenue, announces intent to install jumbotron and other sign in outfield. [Doc. 1,
66-68.]
xii.
July, 2013 Cubs Organization makes offers to numerous Rooftop Business

owners, below market value, using signage plan as a threat and as leverage. [Doc.
1, 77.]
xiii.
Summer, 2013 Kenney tells Schlenker that the Cubs Organization wanted
control of the Rooftop Businesses, so it could control pricing. [Doc. 1, 72.]
xiv.
August 15, 2013 Sugarman and Lufrano tell Anguiano and Finkel that Rooftop
Business ticket prices are too low and that the Cubs Organization cannot compete
with Rooftop Business margins, and said solution was to raise ticket prices.
xv.
January, 2014 At annual Cubs Convention, Ricketts likens Rooftop Businesses

to thieves stealing someone elses property, and Lufrano says the Rooftop
Businesses are a $20 million drag on business which is preventing Cubs
Organization from affording great baseball players. [Doc. 1, 78.]
xvi.
February 1, 2014 Cubs Organization threatens to move team out of Wrigley

Field if it does not get the signs it wants. [Doc. 1, 86.]
xvii.
May 21, 2014 Ricketts publishes video complaining that Rooftop Businesses
cost Cubs Organization millions in annual revenue and that he will proceed with
more signage because the Rooftop Businesses did not acquiesce to the 2-sign
proposal. [Doc. 1, 88.]
37
xviii. July 7, 2014 Lufrano tells Finkel, First we want to get the right to block you,
then we will negotiate. [Doc. 1, 90.]
xix.
July 10, 2014 Cubs Organization secures City Landmarks approval for seven
signs. [Doc. 1, 91.]
xx.
July, 2014 Kenney, in response to offer from McCarthy to sell Plaintiffs two
Rooftop Businesses at fair market value, Thats a good deal if you have a rooftop
business, but once we put up the signs you dont have a rooftop business.
Kenney also tells McCarthy, We control the City. [Doc. 1, 95.]
xxi.
Later July, 2014 Kenney tells McCarthy, We dont like you competing with
our bleachers and grandstands. We dont like you competing with our gate.
Kenney tells McCarthy the Cubs Organization will operate any Rooftop Business
it acquires, and Whatever we dont buy, were going to block. Kenney offers
grossly low price for Plaintiffs Rooftop Businesses. [Doc. 1, 96.]
xxii.
July, 2014 Cubs Organization executives tell Rooftop Owner that the Cubs
Organization would destroy the rooftops if he did not sell. [Doc. 1, 98.]
xxiii. September 9, 2014 Kenney tells Finkel that they had to finish the deal this
week, or I order the steel [for the signs]. [Doc. 1, 99.]
xxiv.
September 29, 2014 Cubs Organization begins construction efforts at Wrigley

Field which includes outfield signage to block the Rooftop Businesses. [Doc. 1,
100.]
xxv.
October, 2014 Kenney leaves voicemail message for Purcell indicating that the
Cubs Organization just reached a deal to buy several other Rooftop Businesses,
and that the Cubs Organization would rearrange where the signs were going if he
did not sell. [Doc. 1, 101.]
xxvi.
October, 2014 Kenney tells Rooftop Business Owner that the Cubs
Organization will move signs to block Rooftops that did not sell. [Doc. 1, 101.]
xxvii. October 21, 2014 Cubs Organization attempts to purchase Finkels three
Rooftop Business loans in order to foreclose on Finkel. [Doc. 1, 103.]
xxviii. December 4, 2014 After getting contracts to certain Rooftop Businesses, and
expecting to acquire three others, the Cubs Organization alters its signage plans to
greater block the Plaintiffs who still refused to sell. [Doc. 1, 106.]
The only question on the table is whether the Complaint alleges sufficient facts plausibly
suggesting that the Cubs engaged in anticompetitive conduct with a specific intent to
38
monopolize. Spectrum, 506 U.S. at 454.4 The rule of reason answers that question in the
affirmative by looking at such things as the before and after, the potential effect of the conduct,
the purpose or end sought, and the evil alleged. Board of Trade of City of Chicago, 246 U.S. at
238 (1918). The defendants intent may shed light on the answer as well. Id.
Here, the before is the existence of sixteen Rooftop Businesses in direct competition
with the Cubs, which successfully competed with the Cubs in the consumer marketplace and
challenged the Cubs ability to charge monopolistic prices for tickets to live events. These are
well-pled facts. The after, the purpose or end sought, the evil alleged, and the potential
effect are essentially the same: the Cubs wanted to sell more of their own tickets, but they were
losing sales to the Rooftops because of discounting, game day sales, and Groupon promotions.
The Cubs also did not give fans an all you can eat and drink incentive, but the Rooftops did. The
Cubs could not compete with the Rooftops margins. The purpose, the end, the evil and the
potential effect were the same: making customers pay more, while giving them less.
The Cubs intent also sheds light into the anticompetitive nature of their conduct. The
Cubs were upset that the Rooftop Businesses charged less for tickets than the Cubs charged for
Wrigley Field tickets, the Cubs admitted they were unable to compete with the Rooftop
Businesses margins, and the Cubs wanted to make more money. But they admittedly could not
compete on the merits, so they had to resort to their predatory and anticompetitive conduct
instead by denying access to an essential facility, and refusing to deal with their competitors
notwithstanding a long-standing, profitable relationship. The ex post facto business justification,
which is highly suspect given the Cubs refusal to undertake an on-the-rooftops sign proposal, is
at best a fact question for a jury.
The Cubs do not raise the dangerous probability element in their Motion to Dismiss, and thus it is waived.
39
The Plaintiffs well-pled facts are a far cry from the vertical integration cases which
reflected that benefits to consumers would follow the defendants conduct. Here, the Cubs were
not trying to displace competitors at the retail level so that they could increase efficiency and
perform a lower-market service cheaper, thus leading to lower prices and more sales. The exact
opposite was their goal, and was the likely outcome. The Cubs wanted to destroy competitors so
they could charge consumers more, while offering even fewer services. The Cubs tried to
acquire the downstream competition to harm consumers by destroying competition, not to
increase competition. They did this by using their leverage and power in the upstream market
the control over Wrigley Field (which does happen to be an essential facility as there is no other
source of product / views) to destroy competition. The decisions in Terminal, Otter Tail, Lorain
Journal and Aspen, as well as the other cases cited above, all support the Plaintiffs theory in this
case, which rises well above the level of plausible based on the facts alleged.
D. The Defendants Case Law is Inapplicable to These Facts
Each and every case cited by the Cubs is distinguishable. In Elliott v. United Center, 126
F.3d 1003 (7th Cir. 1997), the defendant was not even in the peanut business, the market in
which the plaintiff peanut vendor operated. Id. at 1005. (The United Center is obviously not
monopolizing the market for peanuts: it is staying strictly out of the peanut business.) In
Theater Party Associates v. Shubert Org., 695 F. Supp. 150 (S.D.N.Y. 1988), the Plaintiffs
complaint is that there is more competition among theater party agents. Id. at 156 (emphasis
added). Also there, the defendants vertical integration was lawful there because it was the result
of opportunity and business acumen following competitive bidding. Id. (Plaintiff has alleged no
illegal act by Shubert.) The Cubs are not competing on a level playing field here e.g., they
cannot compete with the Rooftop Businesses margins.
40
Morris is also highly distinguishable. There, the PGA refused to permit the plaintiff to
free ride, in other words obtain the PGAs intellectual property product for free so that it could
be resold for profit. 364 F.3d 1288, 1295. The court explained, If Morris wishes to sell PGAs
product, it must first purchase it from PGA. Id. at 1296. Moreover, PGA is willing to sell its
product to its competitors, including Morris. Id. The Rooftop Businesses pay millions for
access to Wrigley Field views, and do not seek to discontinue paying for same.
Likewise distinguishable is S.W.B. New England, Inc. v. R.A.B. Food Group, LLC, 2008
WL 540091 (S.D.N.Y. Feb. 27, 2008). A more complete quote from that case, compared to the
excerpt offered by the Cubs, is that, [T]he termination of one distributor of a product for another
in a given market is not, standing alone, a violation of antitrust laws. Id. at *4 (emphasis
added). It is that standing alone language that is the key distinction. Also, the allegations are
not that the Cubs are trying to replace the competition with others, but rather take over or
eliminate the competition altogether. A refusal to deal is only permissible in the absence of any
purpose to create or maintain a monopoly. Aspen, 472 U.S. at 601.
The Cubs give the Aspen decision short shrift. According to the Cubs, the parties in
Aspen each had their own product, each had their own property, and happened to sell a joint
product as well. [Doc. 30, p. 10.] Then the Cubs say that unlike Aspen, this case involves just
one product, owned by the Cubs. This is an unintelligible and desperate attempt to distinguish a
Supreme Court case which defeats the Cubs entire argument for dismissal, and this attempt must
be rejected.
The only product at issue in Aspen was the all-mountain pass. The parties in that case
also had their own separate products, but those were not the products that the Court focused on,
nor were those the product that the plaintiffs claims were based upon. To the contrary, the
41
Court plainly focused on a particular cooperative venture, a long-standing, and profitable

business practice with its competitor, and the defendants attempting to exclude rivals on some
basis other than efficiency. Absent entirely from the Aspen decisions reasoning was any
suggestion that separate products were competing with one another except perhaps to show that
those other products were useless, unviable alternatives in the relevant market.
And like the Aspen decision, the Plaintiffs and the Cubs do each own their own property.
The Cubs suggestion that the Plaintiffs can still use their properties for something else finds no
logical or legal support from Aspen. The Plaintiffs properties, like the lonely competitor ski hill
in Aspen, will become uncompetitive, useless and unproductive properties. Certainly the ski hill
operator could theoretically do something else with acres of mountain land, just like the
Plaintiffs could theoretically do something else. But the Aspen Court was not interested in such
hypotheticals, the Court was interested in the product at issue in that case, the relevant market at
issue in that case, the impact on consumers at issue in that case, and the anticompetitive
exclusionary conduct at issue in that case.
The Cubs also cite Schor v. Abbott Labs., 457 F.3d 608, 610 (7th Cir. 2006), where that
court stated, antitrust law does not require monopolists to cooperate with rivals by selling them
products that would help rivals to compete. Cooperation is a problem in antitrust, not one of its
obligations. But pulling random quotes from case law, without discussing the facts or reasoning
behind such quotes, is the Cubs downfall. Anyone can find a sentence in a case, place it into a
brief without proper context and make it sound like something it is not. This unorthodox, and
perhaps strategic, style of writing serves only to impose unnecessary burdens on the Plaintiffs,
and this Court, who must then sift through over 100 cited cases for themselves to realize that the
Cubs treatment of those cases is misleading.
42
In Schor, defendant Abbott held a patent on a drug called Norvir. Id. at 609. Used alone
in effective doses, Norvir caused serious side effects. Id. Therefore, companies mixed smaller
quantities of Norvir with other drugs, to create an effective product with fewer side effects. Id.
Abbott combined its Norvir product with other drugs, making Kaletra to sell to consumers. Id.
Competitors bought Norvir from Abbott and mixed their own drugs with it, to sell products that
competed with Kaletra. Id. The plaintiff in Schor complained that Abbott was able to sell
Kaletra for less than competitors products finished products, because Abbott charged them too
much for the Norvir component. Id.
The court in Abbott noted, however, that Abbott was willing to sell Norvir to anyone
willing to pay its price there was no refusal to deal. Id. at 610. The court also noted that patent
holders may lawfully charge whatever they want for their patented products, including Norvir.
Id. The court reasoned, The antitrust laws condemn high prices, not low ones, and it would be
wholly inappropriate to use the Sherman Act to oblige Abbott to raise its price for Kaletra [so
the competitors could also charge more and make more money]. Id. at 611. Furthermore, none
of Abbotts rivals claimed that they were unable to sell their finished products profitably, even at
the current price Abbott charged for Norvir. Id.
The court also explained that Abbott would actually benefit from more competition in the
finished product market, because the more of the finished product that the competitors sold, the
more Norvir they would have to buy from Abbott. Id. at 612. Thus, surely Abbot was not trying
to benefit itself from injuring consumers through lower output and higher prices, and therefore
there was no role for antitrust law to play. Id. This case has absolutely no relevance in the case
at bar. The Cubs are not trying to increase the price they charge the Rooftop Businesses, they are
refusing to deal, seeking to eliminate competitors and increase consumer prices.
43
Likewise unhelpful to the Cubs, notwithstanding their selective, once-sentence quip that
businesses are free to choose who to deal with, is Weber-Stephen Prods. LLC v. Sears holding
Corp., 2014 WL 656753 (N.D. Ill. Feb. 20, 2014). In that case, Weber chose to stop selling its
products to retailer Sears. Id. at *1. Acknowledging that a refusal to deal could be an antitrust
violation, the trial court concluded that the facts of Weber did not fall into cases like Aspen. Id. at
*7. The problem for the court in Weber was that Sears offered no factual allegations to suggest
that competition or consumers would be harmed by Webers decision. Id. at 8. Specifically, no
product was withdrawn from the market, as both Weber and Sears would continue to sell grills
and related products. Id. Furthermore, Sears continued to have access to Weber grills and parts,
albeit only at the retail level, whereas the plaintiff in Aspen was cut off completely. Id. Finally,
Sears offered no facts to support an intent on the part of Weber to monopolize any particular
market. Id.
This is nothing like the instant case, where the Cubs are attempting to harm
consumers with higher prices, remove competitors from the market, and discontinue all avenues
for the Plaintiffs to secure the Cubs product, and the Plaintiffs supply ample facts of same.
Lastly, Port Dock & Stone Corp. v. Oldcastle Northeast, 507 F.3d 117 (2nd Cir. 2007),
offers no support to the Cubs. The court in that case stated, Vertical expansion by a monopolist,
without more, does not violate section 2 of the Sherman Act. Id. at 124. It is that without
more that eliminates any comfort the Cubs might otherwise find in Port Dock or their other
cases. The court in Port Dock continued, There may be special circumstances in which a
monopolists vertical expansion could be anticompetitive. Id. at 125. Merely in that case, The
complaint pleads no facts that would show that Tilcons vertical expansion was for an
anticompetitive purpose rather than for the purpose of improving efficiency. Id. The Plaintiffs
Complaint does plead many salient facts.
44
VI.
The Anticompetitive Nature of the Cubs Conduct

Beginning on page 12 of the Motion to Dismiss, the Cubs acknowledge that conduct must
be anticompetitive to implicate federal antitrust laws. The Cubs cite Eastman Kodak to define
unlawful anticompetitive conduct as the use of monopoly power to foreclose competition, to
gain a competitive advantage, or to destroy a competitor. [Doc. 30, p. 13.] The Plaintiffs agree
with this recitation of the law.
The Cubs claim that the Plaintiffs somehow admitted in a prior lawsuit that the Cubs
had property rights to build walls. [Doc. 30, p. 13.] But the exhibit referenced by the Cubs
could not be more irrelevant.
That memorandum challenged the Cubs claims of
misappropriation of trade secrets (viewing Cubs games from Rooftops), arguing that their
decision to allow neighbors to watch events at Wrigley Field, for decades, constituted an
affirmative defense to a later misappropriation claim. Nothing whatsoever in that document
spoke of the Sherman Act, or to whether building walls or barriers would constitute
anticompetitive conduct for antitrust purposes. It is simply irrelevant. Moreover, it is not
conceivable that a private person or company could say something about misappropriation in
an out-of-context brief and somehow grant another party immunity from federal antitrust law for
future events that had not even transpired yet.
The Cubs next assertion likewise suspends any employment of logic. Instead of arguing
that they were not trying to foreclose competition, gain a competitive advantage or destroy a
competitor, the Cubs proclaim that they were not using any monopoly power when they tried
to destroy the Plaintiffs in order to eliminate competition, reduce consumer choice and increase
prices. The Cubs rationale is that they are property owners (Wrigley Field), and they are simply
denying others access to their property. [Doc. 30, p. 13.] This argument is not supported by the
45
authority cited by the Cubs, and directly conflicts with Lorain Journal, Terminal, Aspen and
Otter Tail, to name just a few relevant cases.
In Hodges v. WSM, Inc., 26 F.3d 36 (6th Cir. 1994), defendant Opryland, an amusement
park, made a deal with some airport shuttle companies whereby those companies would no
longer shuttle people from the airport to Opryland. In return, Opryland agreed to rent vans from
those companies and shuttle customers for itself. Id. at 37-38. In order to make sure the shuttle
companies did not continue transporting customers, Opryland stopped letting any busses on its
property. Id. The plaintiff, another shuttle company, complained that this denial of access
violated the antitrust laws and deprived it of the opportunity to compete in the airport shuttle
transportation market. Id.
The court in Hodges had an understandable problem with the plaintiffs theory. Any
harm the plaintiff suffered was not because of the allegedly anticompetitive conduct the
agreement between Opryland and the other shuttle companies. Id. at 38. If anything, that
agreement actually helped the plaintiff by eliminating some of the plaintiffs competition, since
the court noted that the plaintiff could still shuttle passengers from the airport to Opryland,
presumably just not drop them off inside the theme park. Id. The injury (if any actually existed)
was instead caused merely by one company telling another company to stay off its property.
There was no connection with any anticompetitive conduct. Id. at 38-39.
Hodges has no similarity to this case.
Here, the Cubs conduct will not leave the
Plaintiffs with the ability to continue selling tickets, unlike in Hodges. Second, unlike in Hodges
where there was no showing whatsoever of harm to competition, but rather a benefit to the
plaintiff who would actually have less competition, in this case the Plaintiffs clearly allege
antitrust harms that the laws are designed to protect. Specifically, the Plaintiffs allege that the
46
Cubs are attempting to eliminate competition altogether, in order to raise prices. This is not a
pro-consumer goal; it is monopolistic by every sense of the word.
Christy Sports, LLC v. Deer Valley Resort Co., 555 F.3d 1188 (10th Cir. 2009), is
unsupportive of the Cubs for similar reasons to Hodges. In Christy, a ski resort which was also
in the ski rental business decided not to let competitors continue operating ski rental shops on its
property. Id. at 1191. The crux of Christie was that the relevant market was not determined to be
ski rentals on the resort property, but instead ski resorts generally. Id. at 1194. Consumers would
be protected from monopolistic rental prices because the court found that families select ski
resorts based on quality and price, and they could just select another resort altogether if they did
not like the rental or other prices at one resort. Id. at 1194-95. Thus, the defendants decision
would have no effect on the ski vacation market as a whole. Id. at 1195.
The court in Christie accepted that, generally speaking, property owners like restaurants
do not need to let outsiders compete for sales on their property. Id. at 1194. Of course, the court
properly recognized that in some circumstances, such as Aspen and Trinko, a refusal to cooperate
with competitors could constitute a section 2 violation. Id. The difference between Christie and
Aspen was that in Christie, we have no indication that [defendant] is terminating a profitable
business relationship. There is no allegation that [defendant] was motivated by anything other
than a desire to make money for itself. Id. at 1197. But in Aspen, the court in Christie pointed
out, the defendant had no legitimate justification for discontinuing a profitable arrangement. Id.
In this case, like in Aspen, the Cubs are discontinuing a profitable arrangement without
any valid business justification. The Cubs do attempt to justify their conduct as simply wanting
to make more money from large signs and jumbotrons, but they also stated repeatedly before
sign revenue ever came into the picture that they wanted to eliminate the Rooftop Businesses
47
because the Cubs could not compete with the Rooftop Businesses on the merits on their
margins. The Cubs wanted to force the Rooftop Businesses to make the Cubs more money, by
raising and fixing prices, which harms consumers, and when the Rooftop Businesses refused,
then the Cubs came up with a plan to destroy the Rooftop Businesses, and their ad revenue
justification is merely a pretext, ex post facto, to try and hide their true anticompetitive goals. In
any event, the legitimacy of these justifications are questions of fact which were absent in
Christie and Hodges, and should not be decided on a motion to dismiss.
The Cubs reliance on Weber, and on Reisner v. General Motors Corp., 671 F.2d 91 (2nd
Cir. 1982), for the proposition that this is a mere contract dispute, is also misplaced.
Significantly, the Cubs offer no explanation as to why either of those cases bears any
resemblance to this case. Instead, they just say that those cases were contract disputes, and
nothing more. An examination of those cases reflects their irrelevance here. The problem for
the court in Weber, discussed above, was that plaintiff offered no factual allegations to suggest
that competition or consumers would be harmed by Webers decision to stop doing business with
Sears. 2014 WL 656753, *7 (N.D. Ill. Feb. 20, 2014). No product was withdrawn from the
market, Weber and Sears would continue to sell grills and related products, and Sears continued
to have access to Weber grills and parts. Id.. Moreover, Sears offered no facts to support an
intent on the part of Weber to monopolize any particular market. Id. at 8.
Reisner is also entirely different. The plaintiff in Reisner failed to establish a relevant
market, after extensive discovery. 671 F.2d at 98-99. (Describing the constant shifting and
refusal to specify the relevant markets; and Reisner continually changes his allegations
concerning the relevant markets and failed to answer properly GMs interrogatories.) Faced
with this, the appellate court could imagine no relevant market. Id. at 99. So that case was
48
only a contract dispute.
But here, the Plaintiffs plausibly suggest a relevant market.
Furthermore, the plaintiff in Reisner had the benefit of discovery before the court concluded that
a relevant market did not exist. The Cubs would have the Court in this case cut off the Plaintiffs
on a motion to dismiss, improperly attacking the well-pled facts in the Complaint that create a
plausible relevant market and antitrust claim.
Next, the Cubs argue that if they raised their prices, the Plaintiffs would benefit, not be
harmed. [Doc. 30, p. 14.] The Cubs therefore conclude, erroneously, that the Plaintiffs have not
stated an antitrust injury. But the Cubs have misstated the allegations in the Complaint, and they
types of harm that would be suffered if the Cubs anticompetitive attempts had been successful.
The Complaint alleges that the Cubs anticompetitive conduct would reduce the number of
competitors, because the Cubs would gain market share by either destroying competitors like the
Plaintiffs, or by taking over competitors like the ones they have already purchased and all the
other Rooftop Businesses they repeatedly attempted to acquire.
The harm, therefore, is not higher ticket prices which will let the Plaintiffs charge more
money. The harm to competition is that competition will be reduced, consumers will have fewer
sellers to choose from, and they will eventually pay more money for tickets.
Moreover,
consumers will ultimately pay more money for less service, as the Cubs do not provide that allinclusive food and drink option inside Wrigley Field.
This is harm to competition and
consumers. The harm to the Plaintiffs is that they will be destroyed by this anticompetitive
conduct. How can the Cubs possibly claim that the Plaintiffs will be able to charge more money,
when the Plaintiffs will have no views into Wrigley Field and thus nothing to sell?
Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477 (1977), also does not support
the Cubs illogical theories. In that case, Brunswick sold bowling equipment to bowling alley
49
operators on secured credit. Id. at 479. When many operators defaulted, Brunswick took them
over and operated the bowling alleys. Id. at 479-80. Pueblo, which owned several competitor
bowling alleys, complained that if Brunswick had just let those defaulting bowling alleys close,
or fail, Pueblo would have had less competition and would have made more money. Id. at 481.
The only question before the Supreme Court was whether antitrust damages are available where
the sole injury alleged is that competitors were continued in business, thereby denying
respondents an anticipated increase in market shares. Id. at 484.
Two things were particularly significant in Brunswick. First, Pueblo would have suffered
the same injury regardless of whether a large, national deep pocket had acquired the
competitor bowling alleys, or a small, shallow pocket operator had acquired them. Id. at 487.
Thus, the injury alleged bore no relationship to whether there was a monopolist or monopoly
power. Id. Second, antitrust laws were enacted to protect competition, not competitors, and
Brunswicks conduct promoted competition by keeping more competitors in business. Id. at 48788.
The Plaintiffs do not allege that the Cubs are attempting to promote competition, and the
Cubs provide no such evidence, which would be improper at this stage anyhow. To the contrary,
the well-pled facts in this case, which must be taken as true, allege that the Cubs are trying to
destroy competition by eliminating competitors through anticompetitive conduct derived from
their monopoly power in an upstream market.
Their specific intent and conduct tends to
eliminate competitors, and therefore less competition. It was not the Cubs demands that the
Rooftop Businesses raise ticket prices, in a vacuum, that was the anticompetitive conduct. It is
that when the Rooftop Businesses decided to run their own businesses in the manner they elected
50
to do so, that the Cubs attempted to destroy, eliminate and acquire them to obtain their
anticompetitive goals.
The Cubs citation to Abbyy USA Software House, Inc. v. Nuance Communications, 2008
WL 4830740 (N.D. Cal. Nov. 6, 2008), is another example of why pulling one sentence out of an
unpublished district court order is unhelpful in deciding the questions before this Court. In
Abbyy, the plaintiff offered conclusory allegations that the defendant acquired competitors to
reduce supply and increase prices. Id. at *5. Without more, that activity would necessarily result
in Abbyy also being able to charge more because its competitor was charging more. Id.
(Competitors do not suffer antitrust injury and cannot recover damages where the only injury
alleged is increased prices.) Id. at *4. The notion that this proposition of law helps the Cubs in
any fashion is beyond belief, and is based on an untrue interpretation of the Complaint which
explains why the Plaintiffs will not be around very long.
For similar reasons, the decision in O.K. Sand and Gravel, Inc. v. Martin Marietta Corp.,
819 F. Supp. 771 (S.D. Ind. 1992), is inapplicable here. O.K. Sand involved predatory pricing.
Id. at 790-91. Thus, the plaintiff there would have to show that the defendant tried to drive it out
of business with temporary, artificially low prices. Id. Mere speculation that something like that
could occur in the future was not enough, facts were needed (but absent) to show such predatory
intent. Id. at 791. How is O.K. Sand relevant here? It simply is not; this is not a predatory
pricing case.
The Plaintiffs are not going to be harmed by the Cubs raising their own prices. The
Plaintiffs are going to be harmed because the Cubs are driving them out of business after the
Plaintiffs refused to raise their own prices. The Cubs earned a percentage of the Plaintiffs sales,
the Cubs wanted more revenue, decided to destroy the Plaintiffs completely, acquire competitors,
51
and will subsequently raise all prices across the board. The Plaintiffs will not be around to enjoy
the increase in prices that the Cubs admittedly desire.
The Cubs next one-liner is from Lektro-Vend Corp. v. Vendo Co., 660 F.2d 255 (7th Cir.
1982). There, the Seventh Circuit stated, It is true that acquisitions can sometimes provide
evidence of predatory conduct Id. at 271. Such actions alone, however, are not generally
considered predatory and are therefore rarely condemned unless they occur within an overall
context of unfair monopolistic practices Id. The Cubs argue that there is no context of
anticompetitive conduct here. [Doc. 30, p. 15.] This statement ignores all of the facts in the
Complaint surrounding a series of actions focused on: (i) attempting to reduce competition in a
downstream market, (ii) by either eliminating or acquiring competition, (iii) through the use of
superior monopoly power in an upstream market, (iv) with the intent of increasing prices to
consumers while providing fewer alternative sources of supply and less product for the money.
There is also nothing noteworthy about the Cubs quotation from Olympia, explaining
that if conduct is not anticompetitive, it does not matter that it is hostile to competitors. [Doc. 30,
p. 15.] There is a distinction between hostility to competitors, and hostility to competition the
latter of which is prohibited as anticompetitive. Board of Trade of City of Chicago, 246 U.S. at
238; Paramount, 334 U.S. at 174; E.I. du Pont, 351 U.S. at 391. As indicated above, there is
plenty of intent and effort to hurt competition here.
Lastly, the Cubs argue that the Complaints factual statements surrounding attempts at
price fixing do not identify any impropriety. [Doc. 30, p. 16.] However, the Complaint does not
attempt to state a cause of action arising from price fixing, the facts are pled to give color to the
overall set of facts and circumstances supporting the various causes of action set forth in the
Complaint. The Cubs demanded that the Plaintiffs and other Rooftop Businesses raise prices so
52
that the Cubs, who earn a percentage of all Rooftop Business sales, would earn more. The Cubs
also made this demand because it would have helped them sell more tickets inside Wrigley Field,
a problem they admitted they were having because they could not compete (on the merits) with
the Rooftop Businesses. This establishes the framework, and provides color to the Cubs intent,
in explaining the unlawful events and attempts that followed.
VII.
The Plaintiffs Have A Viable Anticipatory Breach Of Contract Claim

Eleven years into a 20-year contract, the Cubs new owners want to redefine its terms in a
fashion that defeats the very purpose of the Agreement, ignores the facts and circumstances
giving rise to the Agreement, and leads to the most absurd of results. For the reasons that follow,
the Plaintiffs anticipatory breach of contract claim should not be dismissed.
A. The Four Corners Rule Rejects Literal Interpretations And Absurd Results
The Four Corners Rule does not permit a court to employ a rigid application of a single
word, reach a conclusion that is illogical, or ignore the circumstances surrounding the formation
of the agreement in question. To the contrary, courts should consider the entire agreement, the
circumstances in which it was formed, and commercial realities, all of which considerations do
not violate the Four Corners Rule.
The applicable principals of contract interpretation and construction are well established.
Bourke v. Dun & Bradstreet, 159 F.3d 1032, 1035-37 (7th Cir. 1998). The analysis begins with a
determination of whether the contract is ambiguous; whether the language used is reasonably or
fairly susceptible to more than one meaning. Id. at 1036. A contract is not ambiguous if a court
can discover its meaning simply through knowledge of those facts which give it meaning as
gleaned from the general language of the contract. Id. However, must look at the contract as a
53
whole, not just the portion in dispute. Id. at 1038. As stated in Bank of America Natl. Trust and
Sav. Assn v. Schulson:
In determining whether a contract is ambiguous, a court must construe the
contract as a whole, reading each term in light of others. It is presumed
that each part of a contract was inserted deliberately and for a purpose
consistent with the overall intention of the parties. If possible, we must
interpret a contract in a manner that gives effect to all its provisions.
714 N.E.2d 20, 24 (Ill. App. 1999). (Internal citations omitted).
The process of finding the plain meaning was explained in Utility Audit, Inc. v. Horace
Mann Service Corp., 383 F.3d 683, 687 (7th Cir. 2004), as follows:
Although words should be given their ordinary and accepted meaning,
they must also be viewed in context, and the contract must be considered
as a whole in order to ascertain the parties intent. The terms should be
construed so that the contract is fair, customary, and such as prudent
persons would naturally execute, and is rational and probable. (Internal
citations omitted)
Magistrate Judge Cole has performed an insightful and expanded analysis on determining
whether a contract is ambiguous in several decisions in recent years, drawing upon applicable
Seventh Circuit precedent. See, Hoppe v. Great Western Business Services, LLC, 536 F. Supp. 2d
888, 893-95 (N.D. Ill. 2008); Wells Fargo Funding v. Draper & Kramer Mortg. Corp., 608 F.
Supp. 2d 981, 987-90 (N.D. Ill. 2009); Pampered Chef, Ltd. v. Alexanian, 2011 WL 6046896,
**15-16 (N.D. Ill. Dec. 5, 2011). These decisions are instructive. Courts should reject a
contractual interpretation that makes no sense because there is a presumption that parties to a
commercial contract are trying to accomplish something rational. Dispatch Automation, Inc., v.
Richards, 280 F.3d 1116, 1119 (7th Cir. 2002). The court continued, Common sense is a much
a part of contract interpretation as is the dictionary or the arsenal of cannons. Id., citing
Fishman v. LaSalle Nat. Bank, 274 F.3d 300, 302 (1st Cir. 2001).
54
Moreover, one of the cases cited by the Defendants, Wells Fargo Funding v. Draper &
Kramer Mort. Corp., 608 F. Supp. 2d 981, 989 (N.D. Ill. 2009), adds that courts do not interpret
contracts in a vacuum. A Court must place itself in the position of the parties. Id. at 989-990. As
such, [A] court may look to the circumstances surrounding the transaction in order to discern the
parties intent. Id. at 990. This is similar to the Seventh Circuits instruction in McElroy v. B.F.
Goodrich Co., 73 F. 3d 722, 725 (7th Cir. 1996), where the court explained that a contract has to
be interpreted with due regard to commercial realities.
In Baldwin Piano, Inc. v. Deutsche Wurlitzer GmbH, 392 F.3d 881, 883 (7th Cir. 2004),
the Seventh Circuit again emphasized the need to interpret business contracts in the context of
the transaction, and in a way that makes sense given the context the contract was formed in. The
court in Baldwin relied on the reasoning of Beanstalk Group, Inc. v. AM General Corp., 283 F.3d
856 (7th Cir. 2002), explaining, Businesses are not compelled to make sensible bargains, but
courts should not demolish the economic basis of bargains that would be sound if the contract
were given a natural meaning. Baldwin, 392 F.3d at 883.
In Beanstalk, the plaintiff entered into an exclusive representation agreement with AMG
to license AMGs Hummer trademark. 283 F.3d at 858. Two years later, AMG entered into a
joint venture agreement with GM which transferred the Hummer trademark to GM. Id. at 859.
The plaintiff claimed that it was entitled to a commission for any License Agreement, which
his contract defined as any agreement or arrangement, whether in the form of a license or
otherwise, granting merchandising or other rights in the Property," which in turn was defined to
mean trademarks and related rights. Id. at 858.
In affirming the district courts dismissal of the complaint, the Beanstalk court relied on
two principles of contract interpretation. The first is that a contract will not be interpreted
55
literally if doing so would produce absurd results, in the sense of results that the parties,
presumed to be rational persons pursuing rational ends, are very unlikely to have agreed to seek.
Id. at 860. Second, a contract has to be read as a whole, keeping in mind, sentences are not
isolated units of meaning, but take meaning from other sentences in the same document. Id.
The court reasoned that the business context of the formation of the agreement should be
considered. Id. Applying these principles, the court in Beanstalk concluded that the parties could
not have intended that the plaintiff would receive a commission after the trademark was
transferred. Id. at 861. (The parties must have known when they signed the representation
agreement that if AM General ever sold its Hummer business, the trademark would go with
it)
The Supreme Court recently interpreted words in the highly similar field of statutory
construction. Yates v. U.S., No. 13-7451 (S. Ct. Feb. 25, 2015). There. The Court had to decide
whether the words tangible object, as used in 18 U.S.C 1519, were limited to documents or
all physical things. Slip. Op., p. 1, 4. The government acknowledged that the statute was
enacted to deter systematic destruction of documents involving financial fraud, but argued that
the statute should be applied more broadly so that the term tangible objects also encompassed
objects having nothing to do with documents. Id.at 6-7. There, the Court rejected the argument
that the ordinary meaning of a term can be derived solely looking at a dictionary. Id. at 7. The
Court summarized the applicable principles as follows:
Whether a statutory term is unambiguous, however, does not turn solely
on dictionary definitions of its component words. Rather, [t]he plainness
of ambiguity of statutory language is determined [not only] by reference to
the language itself, [but as well by] the specific context in which that
language is used, and the broader context of the statute as a whole.
Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997). See also Deal v.
United States, 508 U.S. 129, 132 (1993) (it is a fundamental principle of
56
statutory construction and, indeed, of language itself) that the meaning of

a word cannot be determined in isolation, but must be drawn from the
context in which it is used). Ordinarily, a words usage accords with its
dictionary definition. In law as in life, however, the same words, placed in
different contexts, sometimes mean different things.
Id. at 7. The Yates principles are a reiteration of prevailing Seventh Circuit law.
B. The Defendants Interpretation Calls For An Irrational, Absurd Result
Count VIII of the Complaint alleges that the outfield sign project now underway, which
will almost completely block the Plaintiffs views, violates 6.6 of the Agreement, which
provides:
The cubs shall not erect windscreens or other barriers to obstruct the views
of the Rooftops, provided however that temporary items such as banners,
flags, and decorations for special occasions, shall not be considered as
having been erected to obstruct views of the Rooftop. Any expansion of
Wrigley Field approved by governmental authorities shall not be a
violation of this Agreement, including this section.
This Agreement was formed for the specific purpose of settling litigation initiated by the
Cubs in 2002 seeking to prohibit the Rooftop Businesses from commercially exploiting their
views into Wrigley Field. [Doc. 1, 35, 38.] Prior to filing that suit, the Cubs installed a
windscreen to obstruct the view from the Rooftop Businesses. [Doc. 1, 35.] And while the
2002 Lawsuit was pending, the City was considering the adoption of the Wrigley Field
Landmark Ordinance, which became effective on February 11, 2004. [Doc.1, 37.]
Since at least 2001, the Cubs had been seeking approval of bleacher expansion at Wrigley
Field. The Associated Press was reporting at the time that the Cubs proposed an expansion of 10
to 12 rows. Exhibit 5. The Chicago Tribune reported at the time that views from the Rooftop
Businesses would be blocked as a result of that expansion. Exhibit 6. And, Philly.com reported
that the bleacher expansion likely meant the end of the Rooftop Businesses. Exhibit 7. The wind
57
screens, the proposed 10 12 rows of bleachers, the pending Landmark Ordinance, and the 2002
Lawsuit, all provide necessary context for the Agreements formation.
In reaching the Agreement, the parties focused their attention on the problems that were
important to both sides. The Cubs wanted a share of the Rooftop Businesses view-derived
income, the very point of the 2002 Lawsuit. The Cubs intention to seek approval for the
bleacher expansion was public knowledge, and an important subject of discussion during the
settlement process supervised by Magistrate Judge Schenkier. Exhibit 8. The proposed bleacher
expansion, if approved, would impact sight lines from the Rooftop Businesses. The Rooftop
Businesses needed to make sure this issue was addressed in the Agreement.
And it was. The Cubs and the Rooftop Businesses knew that bleacher expansion was on
the horizon. They specifically included language in the Agreement that would address both the
Cubs bleacher expansion plans, and the Rooftop Businesses need to ensure that their only
source of revenue would not be cut off. The Rooftop Businesses might have to increase the
height of their grandstands to see over the bleacher expansion. The Cubs agreed to share in those
costs if the bleacher expansion affected the Rooftop Businesses views.
So the Cubs needed the right to expand the bleachers, and the Rooftop Businesses needed
the right to have unobstructed views for 20 years in order to defray the costs of building up over
the bleacher expansion. Therefore, the parties drafted 6 of the Agreement to provide for both
the bleacher expansion then being discussed, and the elimination of windscreens and other
barriers that would block the Rooftop Businesses. They compromised those issues by agreeing
upon a set of remedies in 6.1 to 6.4 to deal with the economic realities of raising the height of
the bleachers. However, the construction of permanent barriers to obstruct views from the
Rooftop Businesses was absolutely prohibited. The last sentence of 6.6, expressly prohibiting
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barriers (to protect the Rooftop Businesses), also clarified that a government approval of the
forthcoming bleacher expansion would not violate that blanket ban (to protect the Cubs). This
give-and-take interpretation of the Agreement, in the context of the facts and circumstances
surrounding the Agreement, reflects in a commercially logical fashion how each party achieved
its goals.
This interpretation of the Agreement applies the Four Corners Rule as proscribed by
the Seventh Circuit, and gives full effect to the various provisions and clauses of 6. This
interpretation is also consistent with the mandate of McElroy, Beanstalk, and Baldwin. No
rational business person could truthfully think that the parties intended the phrase, any
expansion of Wrigley Field, to give the Defendants a blanket right to install barriers at any time
during the 20-year term, so long as they obtained government approval. Such an interpretation
completely disregards the circumstances surrounding the formation of the agreement, and the
notion that business people try to accomplish something rational when forming an agreement.
There are two key reasons for this conclusion.
First, the only expansion being
contemplated when the Agreement was negotiated was the additional 10-12 rows of bleacher
seating. In 2002, nobody in their wildest dreams ever thought Wrigley Field would ever have
jumbotrons or video boards. Second, after having just given up 17% of their future revenue for
20 years; committing themselves to an expensive capital improvement program; and having
experienced blocked views from the windscreen spite fence, no rational business person would
then agree that the Cubs could build a permanent obstruction, in a form of a sign, under the guise
of an expansion of Wrigley Field.
Thus, the Plaintiffs explanation of expansion and government approval in 6 is
reasonable, logical, reflects sound business judgment in the context of the world at the time, and
59
resolves a number of complex issues in a prudent fashion. The Cubs current interpretation
disregards all of these factors and would lead to a completely one-sided agreement that no
prudent business person would have ever signed given the context of this case.
C. The Cubs Cases Are Not Supportive Of Their Interpretation
The Cubs attempt to distinguish between the phrase ,expand the Wrigley Field bleacher
seating, as used in 6.1-6.4, with the phrase, Any expansion of Wrigley Field, as used in
6.6, to argue that the parties intended to let the Cubs erect any barrier, at any time, with
government approval. The Cubs contend that the language in 6.1 through 6.4 is so radically
different from 6.6 that these sections must necessarily be interpreted as having a different
meaning. The Cubs overstate their argument, and the cases relied upon by the Cubs do not
require the conclusion that any expansion must mean something different than bleacher
expansion.
The Cubs rely on Taracorp, Inc. v. NL Industries, Inc., 73 F. 3d 738, 744-45 (7th Cir.
1996), which recognizes the maxim that different words are presumed to have different meanings
when addressing analogous issues. But Taracorp further recognizes that this presumption is
utilized while giving meaning to the context of the entire agreement. Id. at 745.
Indeed,
Taracorp instructs that in applying this principle, a court should consider the coherency of the
agreement as a whole, and other contract language which might undercut the conclusion that a
textual difference must mean a different intent. Id. In Taracorp, the court had to determine the
scope of a sellers environmental cleanup obligation at two different geographic locations, where
the contract used the phrase at, on or near with respect to one location, and the phrase
associated with for the other location. Id. at 743. The court in Taracorp found that the two
phrases were substantially different; one being locational and the other being relational. Id. at
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744.
Here, the two phrases at issue are far from the clearly distinct words in Taracorp.
Moreover, finding that any expansion, as used in 6.6, is limited to bleacher seating
expansion, as used elsewhere, results in an interpretation that gives meaning to the entire
contract, and avoids a result that would be incredibly absurd, ignorant of the context of the
agreements negotiations, and illogical from a business perspective.
Similarly, the court in Woods v. Elgin, Joliet & Eastern Railway Co., 2000 WL 45434
(N.D. Ill. Jan. 11, 2000), determined that the word coverage, when used with respect to an
insurance policy, had a different meaning then the term scope. Id. at *5. Woods and Taracorp
both made sense based on the facts before those two courts. The reasoning by those courts
would only make sense here if the Cubs interpretation is rejected.
The Cubs literal interpretation of the Agreement is no more plausible than the Plaintiffs
literal interpretation. The Plaintiffs consider the textbook meaning of expansion to be to make a
thing larger, not to change that thing by adding new things to it. The Cubs think adding new
things, because they are secured with concrete, nuts and bolts, make larger what is already there
(but different).
The Cubs definition of expand is simplistic and antithetical to the guiding principles of
both the Seventh Circuit and the Supreme Court in relating to textual interpretation of contracts
and statutes.
The Cubs, for instance, posit that a video board increases the volume of
information and therefore is an expansion of Wrigley Field (See Opposition for Motion for
Preliminary Injunction (incorporated into Motion to Dismiss) at 28-29). But the Agreement
exists to settle litigation which had nothing to do with signs or any form of expansion other than
the anticipated 2005 bleacher expansion. On the other hand, it makes perfect sense that a video
board could be exactly type of a universe of theoretical permanent barriers that are absolutely
61
prohibited by the first sentence of Section 6.6. Within the context of the Agreement, signs, and
anything other than bleachers, are a permanent barrier.
In attempting to rewrite the Agreement to suit their current objectives, the Cubs also
argue that any expansion is greater in scope than bleacher expansion, because any must
mean there are no limitations on what they may install, so long as it is approved by the
government. This interpretation disregards the rest of the Agreement as a whole, and its purpose.
Moreover, construction of the word any is not so simple. Schulson, 714 N.E.2d at 25.
(Adopting the principle that a contract clause cant be read in isolation.) Rather, that word must
also be viewed in light of the other contract terms. Id. In Schulson, the court explained that, the
word any may be limited when other language cannot be given effect without limitation. Id.
There, guarantors were entitled to a reduction of their exposure equal to 36% of any principal
payments. Id. at 23. The Schulson court concluded that the term any was limited in the
context of the applicable contract, and that the applicable language did not apply to principal
reductions made from collateral proceeds, after default, because that interpretation would
conflict with other text that clearly stated that the guaranty was one of payment, not collection.
Id. at 25-26.
Applying that principle, Schulson rejected the broad interpretation of any
advocated by the guarantors. Id. at 26. The same reasoning applies here. Any expansion in
6.6 must refer to any expansion of bleacher seating. Just as the court in Schulson would not
interpret any in a way that turned a guaranty of payment into a guaranty to collection, this
court should find that any expansion means any bleacher expansion.
This Court may, and should, also look at how the parties performed under the Agreement.
Chicago United Industries, Ltd. v. City of Chicago, 685 F. Supp. 2d 791, 823 (N.D. Ill. 2010).
(Under Illinois law, a course of dealing between contracting parties is admissible to explain or
62
supplement the terms of an agreement even without a determination that the agreement is
ambiguous.)
The Cubs conduct since entering into the Agreement demonstrates their
understanding that the Agreement prohibits outfield signs that will block the Rooftop
Businesses views.
First, the Cubs have never attempted to install any windscreens, signs, video boards or
other barriers since the execution of the Agreement, until they changed owners. Significantly,
prior to the Tribunes sale of the Cubs to the Ricketts family, the Cubs demonstrably knew that
Any expansion in the last sentence of 6.6 of the Agreement was limited to bleacher
expansion.
In early 2008, the newly constructed Rooftop Properties at 3617 and 3619 N.
Sheffield were negotiating an agreement with the Cubs. Michael Lufrano, who worked for the
Cubs before and after their sale to Ricketts, was responsible for negotiating and drafting the
Agreement with the attorney for the 3617-19 N. Sheffield owners. Lufrano took the existing
Agreement from the 2002 Lawsuits settlement, but made s significant and revealing change in
the paragraph that prohibits the Cubs from erecting permanent barriers.
In 2008, Lufrano
replaced the phrase, Any expansion of Wrigley Field approved, with, Any expansion of or
modification to Wrigley Field approved (emphasis added). This proposed insertion of the
words, or modification to, reflects a recognition by the Cubs that signage did not fall within the
definition of any expansion as used in the 2004 Agreement. The owners of the new buildings,
who already were part of the 2004 Agreement on another building, rejected the proposed
modification and it was not included in the final version of the Agreement between them and the
Cubs in 2008. If the Cubs believed that installation of a sign fell within the definition of any
expansion, there would have been no need to try and add the phrase or modification.
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Moreover, even Ricketts acknowledged a number of times that the Cubs could not do
whatever they wanted in the outfield until after the Agreement concluded in 2023. Around
January 8, 2014, Ricketts stated about the Rooftop Businesses:
Its just another one of the things that we basically inherited that were
working to address. All the rooftop owners I do like them personally
and the experience is unique and it does give Wrigley a little bit of charm.
But (if) this is a private investment of hundreds and hundreds of millions
of dollars, we just have to know in 2023 when we no longer have a
contract (with the rooftop owners) that we can do anything we want to the
park and do whats right for the team and not have to worry about the
people across the street.
[Doc. 1, at Exhibit A-8-6.] Moreover, if the Cubs could have always done whatever they
wanted, why did they continually complain to the press and the public that the Rooftop
Businesses would not agree to their 2-sign proposal? Why did the Cubs repeatedly try to get the
Rooftop Businesses on board? Why did they hold a mock-up event to show the Rooftop
Businesses what they wanted the Rooftop Businesses to agree to? All this is because the Cubs
always knew, since 2004, that they were allowed to expand the bleachers, and not put up huge
signs a few years later that would vitiate the entire Agreement.
D. Parol Evidence Reaches the Same Result
If the Court finds the Agreement ambiguous with respect to the present dispute, it must
allow a trier of fact to consider parol evidence. The classic definition of ambiguity in Illinois is
whether the language at issue is susceptible to more than one reasonable interpretation. Omnitrus
Merging Corp. v. Illinois Tool Works, Inc., 628 N.E.2d 1165, 1168 (Ill. App. 1993). When a
contract term is deemed to be ambiguous, the business context from which the agreement arises,
and the mandate to avoid absurd results, requires a finder of fact to consider the intent of the
parties. Central States, Southeast, Southwest Areas Pension Fund v. Kroger Co., 226 F.3d 903,
911 (7th Cir. 2000). (Bench trial). This Court may find the meaning of the last sentence of 6.6
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as susceptible to more than one interpretation when viewing all of the Four Corners factors as
a whole.
Should the Court find the agreement ambiguous, the Plaintiffs have presented sufficient
evidence to state a plausible claim for anticipatory breach of contract to present to a jury. The
Agreement was entered into at the conclusion of a court-supervised settlement conference
overseen by Magistrate Judge Schenkier in Chicago National League Baseball Club, Inc., v. Sky
Box on Waveland, LLC (No. 02-cv-9105). (Agreement, first Recital and 2.) In that litigation,
the Cubs contended that the owners of Rooftop Businesses across from Wrigley Field had no
legal right to commercially exploit their ability to view events inside Wrigley Field without the
permission of the Cubs. At the time the Agreement was executed, the City of Chicago was
considering the ordinance that designated Wrigley Field as a Chicago Landmark, ultimately
adopted on February 11, 2004. Since 2001, the Cubs had been planning the construction of new
bleachers that would necessarily expanded the outfield walls at Wrigley Field and impair the
views from Rooftop Businesses by 10-12 rows. This context was public knowledge. The Cubs
abided by the Agreement for ten years, and acknowledged its meaning to the public. The
Rooftop Businesses would not have entered into an agreement that let the Cubs block their views
whenever they wanted, as long as the City let them do it. A mountain of extrinsic evidence will
prove these facts.
E. The City is Not the Final Arbiter
This court should give no credence to the Cubs argument that the City was intended to
be the final arbiter of what constitutes permissible obstructions of the Rooftop views. It is
plainly obvious that any construction at Wrigley Field would require government approval. The
City does not care whether the Cubs call their project an expansion or an addition. The City
65
just cares about building code, zoning and landmark ordinance compliance. Therefore, the fact
that the Cubs intentionally called their sign proposal an expansion when pitching it to the City
is irrelevant.
VIII. Ricketts Committed Defamation Per Se
In front of a large crowd of Cubs fans, and radio, television and print media
correspondents, defendant Ricketts stated in January of 2014:
Its funny I always tell this story when someone brings up the rooftops.
So youre sitting in your living room watching, say, Showtime. All right,
youre watching Homeland. You pay for that channel, and then you
notice your neighbor looking through your window watching your
television.
And then you turn around, and theyre charging the other neighbors to sit
in the yard and watch your television. So you get up to close the shades,
and the city makes you open them. Thats basically what happened.
[Doc. 30, 80.] One wonders what other audiences Ricketts meant when he said that he would
always tell this story when someone brings up the rooftops.
In the context of his speech and Q&A session, Ricketts informed a global audience of
Cubs fans, all of them actual or potential Rooftop Business customers, that the Cubs could not
field a competitive team because the rooftop owners were stealing unlawfully charging money,
without permission, to view the Cubs product. The Cubs attempt to spin Ricketts remarks as
innocent necessarily scoffs at the obvious: Mr. Ricketts statement accuses the Rooftop
Businesses of the textbook definition of copyright infringement, identifying the perpetrator and
method.
On pages 17 through 21 of their Motion to Dismiss, the Cubs lump a number of the
Plaintiffs claims together, overlooking and generalizing material components of each distinct
claim. A more thorough analysis of each of those claims, provided below reflects their validity.
66
A. Ricketts Statement is Defamation Per Se

In Illinois, To state a defamation claim, a plaintiff must present facts showing that the
defendant made a false statement about the plaintiff, the defendant made an unprivileged
publication of that statement to a third party, and that this publication caused damages. Solaia
Technology, LLC v. Specialty Pub. Co., 852 N.E.2d 825, 839 (Ill. 2006). Defamation per se
includes, among other things, (i) words that impute a person has committed a crime; (ii) words
that impute a person is unable to perform or lacks integrity in performing her or his employment
duties; and (iii) words that impute a person lacks ability or otherwise prejudices that person in
her or his profession. Id. A plaintiff is not required to prove specific damages in defamation per
se cases. Bryson v. News America Publs., Inc., 672 N.E.2d 1207, 1214 (Ill. 1996).
Whether a statement constitutes actionable defamation is a question of law. Madison v.
Frazier, 539 F.3d 646, 654 (7th Cir. 2008). In a conclusory fashion, the Cubs argue that Mr.
Ricketts statement was not false, it was a non-actionable opinion, and it is subject to innocent
construction. For the reasons that follow, these arguments are incorrect in law.
B. Ricketts Statement Is Verifiably False And Not A Protected Opinion
As noted above, defamation involves a false statement of fact. In determining this
question, courts consider whether the statement has a precise and readily understood meaning;
whether the statement is verifiable; and whether the statements literary or social context signals
that it has factual content. Rose v. Hollinger Intl, Inc., 889 N.E.2d 644, 648 (Ill. App. 2008);
Imperial Apparel, Ltd v. Cosmos Designer Direct, Inc., 882 N.E.2d 1011, 1022 (Ill. 2008). In
particular, courts heavily weigh whether the statement is capable of objective verification.
Rose, 889 N.E.2d at 648.
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A defamatory statement is constitutionally protected [as opinion] only if it cannot be

reasonably interpreted as stating actual fact. Solaia, 852 NE.2d at 840. Certain defamatory
expressions of opinion are protected under the first amendment, and are thus considered nonactionable. Rose, 889 N.E.2d at 647. Ricketts statement does not fall into this category.
Furthermore, even opinions can be an actionable defamation per se. Solaia, 852 N.E.2d at
840. (There is no artificial distinction between opinion and fact: a false assertion of fact can be
defamatory even when couched within apparent opinion or rhetorical hyperbole.) Also see
Dubinsky v. United Airlines Master Executive Council, 708 N.E.2d 441, 447 (Ill. App. 1st Dist.
1999) (expressions of opinion may often imply an assertion of objective fact and, in such cases,
would be considered actionable.)
Mr. Ricketts statement is a metaphor for copyright infringement and theft of a product.
The 2004 agreement between the Cubs and the Rooftop Owners establishes Mr. Ricketts
statements as false.
The Cubs argue otherwise, relying upon incomplete and incorrect
application of the prevailing law.

To support its opinion argument, the Cubs rely upon Zucker v. Chicago Tribune Co.,
2004 WL 3312757 at *4, to argue that Mr. Ricketts statement was a non-actionable opinion.
However, Zucker is distinguishable from the instant action. In Zucker, the defendant newspaper
and story author wrote:
What was he thinking? The last person we expected to see Wednesday at
Ch.2 sportscaster Tim Weigel's tearful, joyful memorial service was his
ex-agent, Steve Zucker. Weigel and Zucker had a legendary falling out
dating back many years, fueled by dueling lawsuits and a restaurant
confrontation just last year. So imagine our stunned disbelief to see Zucker
trying to get past three different checkpoints at the church service. Each
time, he was politely turned away.
68
Id. at *1. Holding that this article was not defamation per se, the appellate court explained,
Plaintiff claims that the story accused him of essentially stalking a former client even in death
and its main point was his lack of professionalism. Plaintiff's rhetoric notwithstanding, we find
the story was about no such thing. The story is about a single incident, the sighting of an
individual (plaintiff) with whom Weigel had previously had a professional relationship, trying to
attend Weigel's memorial service. Id. at *3.
Simply put, there is no similarity whatsoever to the statement in Zucker and Ricketts
statement in this case. On the other hand, the Solaia decision is more pertinent to the instant
action.
In Solaia, the magazine defendants published numerous articles questioning the
supposed patent trolling tactics of the plaintiff. 852 N.E.2d at 836. One published article included
a letter from an anonymous industry veteran, which referred to one of the plaintiffs patents as
essentially worthless, noted that they only paid $1.00 for it, and compared the plaintiffs to
people in the world who want to make a lot of money and dont care how they do it, such as
O.J. Simpsons criminal defense attorney Johnny Cochran, Enron and WorldCom executives
charged with various financial improprieties, the Washington D.C. sniper, a group of muggers
armed with baseball bats. Id. at 836. The Court found certain the statements in the letter to be
actionable, stating, The letter undoubtedly employs hyperbole, but this statement is not an
opinion. Under its metaphorical chaff hides a kernel of fact: Solaia Technology secured a
worthless patent and filed infringement claims with the sole aim of extracting settlements. Id. at
841. Continuing, The statement directly impugns the plaintiffs integrity by questioning the
validity of the patent and consequently the validity of Solaia Technologys infringement
claims Id. at 842.
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Like Solaia, under Mr. Ricketts supposed opinion lie kernels of fact: allegations that
the Plaintiffs are stealing the Cubs product by selling tickets to view Cubs events without the
Cubs authorization. In fact, Mr. Ricketts statement was an exact metaphorical depiction of the
Cubs arrangement with the Rooftops: that the person outside (the Rooftops) was charging
people to peek into the neighbors (the Cubs) window (Wrigley Field) to watch Homeland (live
Wrigley events). However, the statement was patently false: Ricketts omitted that there was a
20-year contract whereby the Cubs allowed the Rooftops to charge people to look in, and it was
not the City that made the Cubs open the curtains, it was the Cubs decision to enter into that
contract.
The specificity of Ricketts remarks is what makes them actionable; they can be proven
false. The Cubs do not attempt to perform the correct defamation analysis in their Motion to
Dismiss, but the cases relied upon by the Cubs do make that analysis. In Green v. Rogers, 917
N.E.2d 450, 460 (Ill. 2009), the Illinois Supreme Court found that the plaintiffs allegedly
defamatory statements, such as the Plaintiff [a baseball coach] exhibited a long pattern of
misconduct with children which was not acceptable for CHLL coaches, and Plaintiff abused
players, coaches, and umpires in CHLL, were non-actionable. The Green Court explained,
[t]o begin with, these allegations are completely devoid of any specifics, such as what type of
misconduct plaintiff exhibited; that nature of any alleged abuse; or how that abuse manifested
itself in relation to players, coaches and umpires. Id. All of these specifics are plainly apparent
in Ricketts statement. The who, the what, the where and the other key details are all contained
in his statement.
In Schivarelli v. CBS, Inc., 776 N.E.2d 693, 696 (Ill. App. 2002), at issue was a 30second promotional commercial depicting Pamela Zekman, an investigative reporter, stating to
70
the plaintiff, Lets sum this up for a second, the evidence seems to indicate that youre cheating
the city. Id. The Schivarelli court held that this statement was not specific enough to be
objectively verifiable because it was not made in any specific factual context. Id. at 699.
Notably, Ms. Zekman did not explain the evidence that she was referring to, nor did she state
why she thought [the plaintiff] was cheating the city, how he was cheating the city, or even what
she meant by the term cheating. Id. There is no such uncertainty in Ricketts statement. He
was talking about the Rooftop Businesses, his statement said so. He was talking about the
Rooftops charging money (specific fact) to consumers (specific fact) supposedly without the
permission of the Cubs (specific untrue fact) to watch something they had no right to sell
(specific untrue fact).
Conversely, in Giant Screen Sports v. Canadian Imperial Bank of Commerce, 553 F.3d
527 (7th Cir. 2009), the Seventh Circuit found the defendants statement to a third party
insurance company, that the plaintiff had breached a contract, as actionable. Id. In making this
finding, the court noted, in one sense all opinions imply facts, the question of whether a
statement of opinion is actionable as defamation is one of degree; the vaguer and more
generalized the opinion, the more likely the opinion is non-actionable as a matter of law. Id.,
quoting Wynee v. Loyola Univ., 741 N.E.2d 669, 676 (7th Cir. 2000). Ricketts statement was
also very clear, not at all vague, and clearly meant something specific (yet untrue): that the
Rooftops were stealing his product.
C. The Innocent Construction Rule Does Not Shield Ricketts Statement
Certain otherwise defamatory expressions are not actionable because they are subject to
an innocent construction. Muzikowski v. Paramount Pictures Corp., 322 F.3d 918, 924 (7th
Cir. 2003). In Solaia, the court explained:
71
The so-called innocent-construction rule requires a court to consider the

statement in context and to give the words of the statement, and any
implications arising from them, their natural and obvious meaning[A]
court must interpret the words of the statement as they appear to have been
used and according to the idea they were intended to convey to the
reasonable reader. When the defendant clearly intended and unmistakably
conveyed a defamatory meaning, a court should not strain to see an
inoffensive gloss on the statement.
852 N.E.2d at 839.
The context of Ricketts statement reveals an obvious meaning with clear intent. Ricketts
intended to convey the message that the Rooftop Businesses were charging people money for a
product they did not own or have the right to sell, which is untrue. Ricketts intended to hide the
fact that the Cubs and the Rooftop Businesses had a 20-year contract, instead stating that the City
made them do it. The statement was made in the context that the Rooftop Businesses were a
drag on the Cubs and were affecting their ability to make enough money to afford winning a
World Series.
The Cubs rely upon the trial courts decision in 3639 LLC v. Ganis, No. 2014-L-628 (Ill.
Cir. Ct. Cook County Law Div. June 30, 2014), to support its argument that Ricketts statement
is capable of an innocent construction. [Doc. 30, p. 22.]
The facts of Ganis are readily
distinguishable, and even instructive why there cannot be an innocent construction of Ricketts
statement. In Ganis, the plaintiffs complained that the statement, [p]rotecting carpetbaggers
stealing the product paid for by others for their own profit, imputed theft on the plaintiffs.
Ganis, p. 12. The Ganis court assessed the context (the article) of which the statements were
made within, to determine their natural and obvious meaning. Id. The subject matter of the
article was the political debate surrounding the proposed expansion of Wrigley Field among the
Rooftop Owners, the Cubs, and the City of Chicago. Id at 11. Ultimately, the Court found that
the comment, [p]rotecting carpetbaggers stealing the product, to be vague and generic, because
72
it provided no specifics as to who the carpetbaggers were, what they stole, how they stole it, how
much they have stolen and what crime had been committed. Id.at 8. The Ganis Court also noted
that the word steal could have many other connotations beyond a criminal context (i.e. to
describe a bargain for $25 it was a steal), and that the word carpetbagger modified the word
stealing to imply opportunism. Id. at 12-13. Thus, the Ganis court concluded that the vague
terms and subject matter of the article caused the natural and obvious meaning of the defendants
statements to be that opponents to Cubs expansion were opportunists, benefitting and profiting
from a product they did not create. Id. at 13.
First, Illinois law does not permit the citation of unpublished Illinois trial court decisions.
Ill. S. Ct. R. 23(e). Second, an unpublished state court trial-level order has no precedential value
over state and federal appellate-level decisions.
Third, Ricketts comments at the Cubs
convention are starkly different than those in Ganis. Mr. Ricketts identified who he was talking
about (the Rooftops), what they supposedly stole, (views to a protected product), how they stole
it and profited thereby (by charging people for views they did not have a right to), and that the
Cubs did not approve of this conduct (the City made the Cubs open the curtains). Of equally
important consideration is the context of Mr. Ricketts remarks: the Cubs Convention and the
line of questioning he was responding to. The individuals attending, listening to, and reading
about the Cubs Convention were devoted Cubs fans. They knew who the Rooftops were. They
knew what the Rooftops business was. In fact, it was a question from the crowd regarding the
Rooftops that prompted Mr. Ricketts actionable statements. Cubs fans knew exactly what Mr.
Ricketts comments meant, and even called for a boycott of the Rooftop Businesses just days
later.
73
Add to this context that another Cubs executive at the same Cubs Convention commented
that the Cubs are losing $20 million in bleacher sales due to the rooftops, which he said was
preventing the acquisition of great baseball players such as Miguel Cabrera, Justin Verlander,
Joe Mauer, and Cole Hamels. [Doc. 1, 81, 84.] One would have to strain far beyond reason to
find an innocent construction to his comments.
In Tuite v. Corbitt, 866 N.E.2d 114, 128 (Ill. 2006), the plaintiff sued a book author who
wrote about corruption and organized crime in Chicago. Id. The plaintiff, a criminal defense
attorney, was named in the book as someone who could help organized crime members avoid
criminal convictions through bribery. Id. However, bribery was not specifically mentioned in the
book, but rather raised through innuendo. The Illinois Supreme Court nevertheless found that
innuendo imputing the criminal act of bribery upon the plaintiff was very much actionable,
holding, [a]lthough the book does not explicitly describe bribery as the plaintiffs method to
achieve a favorable outcome, it also does not mention or describe [his] trial skills as the basis
for the criminal defendants confidence in their acquittals. Based on the wording of the excerpt
along with the context of the book as a wholea reasonable reader would most likely conclude
this passage [alluded] to bribery. Id. at 129. Like this, Ricketts metaphorical innuendo plainly,
and even more directly than in Tuite, imputed theft upon the Rooftops.
The Cubs argue, in an effort to dilute Plaintiffs claims, that even where a plaintiff sues
over rape or prostitution-based defamation claims, they might not be actionable. In Trembois v.
Standard Ry. Equip. Mfg. Co., 84 N.E.2d 862, 866 (Ill. App. 1949), the court held that mere
reference to an arrest and rape charge was not defamatory per se, because an [a]rrest is no
evidence of guilt. Likewise, in Knafel v. Chicago Suntimes, Inc., 413 F.3d 637 (7th Cir. 2005),
an article was written about a woman who sued Michael Jordan in connection with allegations of
74
hush money to hide an affair. The author of the article referred to the plaintiff, who was an
aspiring singer and now a hair designer, as making herself sound like someone who once
worked in a profession thats a lot older than singing or hair designing. Id. at 641-42. The
Knafel Court found that the comment did not impute the crime of prostitution because it said she
was making herself sound like, not that she was being called, a prostitute. Id. at 642. Ricketts
statement, conversely, was not a comparison. It affirmatively accused the Rooftops of actively
performing an unlawful act just like the neighbor was also a criminal.
IX.
The False Light Claim is Actionable

The Cubs also argue, rather summarily, that the Plaintiffs false light claim must fail for
the same reasons as the defamation claim. However, the false light claim warrants separate
consideration because it is not subject to the innocent construction rule. A properly plead false
light claim contains allegations showing that a plaintiff was placed in a false light before the
public as a result of a defendants actions; that the false light in which the plaintiff was placed
would be highly offensive to a reasonable person; and that the defendant acted with actual
malice, that is, with knowledge that the statements were false or with reckless disregard for
whether the statements were true or false. Dubinsky, 708 N.E.2d at 451. [C]ourts universally
recognize that a statement need not be defamatory for a false-light privacy action to lie.
Zechman v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 742 F. Supp. 1359, 1373 (N.D. Ill.
1990). It follows, then, that the innocent construction rule, which can be recast as the nondefamatory construction rule, does not apply to false-light privacy actions; this court must
consider only whether the statement is susceptible of a false meaning that is highly offensive to a
reasonable person. Id.
75
In Zechman, the plaintiff complained of defamation and false light arising from his
termination of employment. Id.
The plaintiff was terminated in the unusual manner of
management coming to his office, refusing to let him speak to his staff, escorting him out of the
building, and then interrogating other employees regarding his travel and entertainment expense
account. Id. at 1370. The court dismissed the plaintiffs defamation claim because refusing to let
him speak to his employees, and escorting him from the building, did not create an implication of
criminal conduct and was susceptible to innocent construction. Id. at 1372. However, the court
did not dismiss the false light claim, holding, [u]nlike our analysis under the innocent
construction rule, the relevant inquiry here is whether the statement [or series of acts] can
reasonably be construed as false and highly offensive, not whether it reasonably can be construed
as innocent. Id. Accordingly, in this case, the Plaintiffs false light claims are not subject to the
same standards as their defamation claims. Moreover, the court in Zechman found it necessary
to allow discovery into what was said to the plaintiffs former employees during their
interrogation not grant a motion to dismiss. Id. at 1373-74.
X.
The Plaintiffs Lanham, Deceptive Trade Practice, and Deceptive Business Practice
Act Claims Are Well-Pled
The same legal analysis applies in determining whether a plaintiff has stated a cause of
action under the Lanham Act and the Illinois Uniform Deceptive Trade Practices Act (the
UDTPA). Morningware, Inc. v. Hearthware Home Products, Inc., 673 F. Supp. 2d 630, 639
(N.D. Ill. 2009). Additionally, violations of the UDTPA constitute violations of the Illinois
Consumer Fraud and Deceptive Business Practices Act (the CFA), except that a person need
not have been actually misled, deceived or damaged in such cases under the CFA. 815 ILCS
505/2. As such, the same analysis generally applies to Counts III through V of the Complaint.
76
To state a Lanham Act claim, a plaintiff must allege: that the defendant (1) made a false
or misleading statement, (2) which actually deceives or is likely to deceive a substantial segment
of the statements audience, (3) on a subject material to the decision to purchase the goods, (4)
touting goods entering interstate commerce, and (5) that results in actual or probable injury to the
plaintiff. B. Sanfield, Inc. v. Finlay Fine Jewelry Corp., 168 F.3d 967, 971 (7th Cir. 1999). As
explained in B. Sanfield, Where the statement in question is actually false, then the plaintiff
need not show that the statement either actually deceived consumers or was likely to do so. But
where the statement is literally true or ambiguous, then the plaintiff is obliged to prove that the
statement is misleading in context, as demonstrated by actual consumer confusion. Id.
Statements are actionable under the Lanham Act under two circumstances: (i) when the
statement in question is actually false and in which case the plaintiff need not show actual
deception to consumers; and (ii) where the statement is literally true or ambiguous, in which case
the plaintiff must allege that the statement is misleading in context, as demonstrated by actual
consumer confusion. Id. at 971.
Determining actual confusion requires considering the
statement in context and with reference to its audience. Schering-Plough Healthcare Products,
Inc. v. Schwarz Pharma, Inc., 586 F.3d 500, 513 (7th Cir. 2009)
The Plaintiffs allege that the Ricketts statement was both literally false, and also
misleading in context causing actual consumer confusion. [Doc. 1, 195, 199, 200.] The
Defendants do not bother attempting to refute, or even address, the issue of consumer confusion.
Thus, regardless of whether the statement was literally true, these counts cannot be dismissed
because there are well-pled allegations of actual consumer confusion which are not challenged in
the Motion to Dismiss. Id.
77
The Defendants choose to dispute the Plaintiffs Lanham Act claim by arguing that the
Defendants have not made any false statements. [Doc. 30, p. 18.] However, the Defendants
provide no analysis, nor any legal support, concerning what qualifies as a false statement under
the Lanham Act. Similar to a defamation claim, courts must ask whether the statement, wasa
specific and measurable claim, capable of being proved false or of being reasonably interpreted
as a statement of objective fact. Coastal Abstract Serv., Inc. v. First Am. Title Ins. Co., 173 F.3d
725, 731 (9th Cir. 1999).
The Defendants argue that subjective statements are not actionable under the Lanham
Act, citing Rosenthal Collins Group, LLC v. Trading Technologies International, 2005 WL
3557947 (N.D. Ill. Dec. 26, 2005). [Doc. 30, p. 19.]. In Rosenthal, the defendant, a competitor to
plaintiff, referred to the defendants product as innovative, and leveling the playing field. Id.
at 10. The court rejected the plaintiffs Lanham Act claim because the words innovative, and
leveling the playing field, were not specific, not concrete, not measurable, and therefore
puffery. Id. Similarly, in Coastal, The statement that Coastal was too small to handle
Shearson's business, along with the implication or statement that First American was large
enough to handle that business, was exactly the kind of puffery that does not qualify as a
statement of fact capable of being proved false. Id. There is no similarity to this case.
The Cubs also rely upon McDavid Knee Guard, Inc. v. Nike USA, Inc., 2010 WL 300178
(N.D. Ill. July 28, 2010), to argue that statements of opinion are not actionable in Lanham Act
claims. [Doc. 30, p. 20.] In McDavid, defendant Nike told certain university personnel that
Nikes contract with the university prohibited players from using plaintiff McDavids equipment.
Id. at *1. McDavid sued for false or deceptive statements in commerce. Id. at *1. The court in
78
McDavid disagreed, ruling that Nikes statement was merely a lay opinion as to the contents of a
contract, and thus not actionable. Id. at *3.
XI.
Plaintiffs Contractual Non-Disparagement Claim is Well Pled

The Defendants provide little argument or analysis for why Count IX, premised on the
defendants breach of contractual non-disparagement clauses, should be dismissed. Instead, the

Defendants lump Count IX into their Lanham, UDTPA and CFA discussion. However, the
proper analysis for the Plaintiffs breach of contract claim (related to the non-disparagement
provisions) is a conventional breach of contract analysis.
The Plaintiffs alleged the existence of a contract between themselves and the Cubs, which
contract contains a provision that the Cubs will not publically disparage, abuse or insult the
business of any Rooftop or the moral character of any Rooftop or any Rooftop employee. The
Plaintiffs further allege that this provision in the contract was breached in light of the statement
made by Ricketts, and as a result the Plaintiffs have been damaged in the form of lost revenue,
negative publicity, and a decrease in property value. [Doc. 1, 267.] Accordingly, the Plaintiffs
have alleged a breach of contract action. The Defendants are free to deny these allegations in an
answer to the Complaint, but the elements of a breach of contract action are well-pled and the
Defendants provide no legal basis why these claims should be dismissed under a Rule 12(b)(6)
analysis. Any factual dispute concerning the statement or its effects are untimely.
XII.
Conclusion
For the foregoing reasons, the Plaintiffs request that the Defendants Motion to Dismiss
be denied in its entirety.

WHEREFORE, the plaintiffs, Right Field Rooftops, LLC, d/b/a Skybox on Sheffield,
Right Field Properties, LLC, 3633 Rooftop Management, LLC, d/b/a Lakeview Baseball Club,
79
and Rooftop Acquisition, LLC, respectfully request that this Honorable Court deny the
Defendants Motion to Dismiss, and grant any additional relief deemed just and appropriate.
Respectfully Submitted,
Right Field Rooftops, LLC, d/b/a Skybox on
Sheffield, Right Field Properties, LLC, 3633
Rooftop Management, LLC, d/b/a Lakeview
Baseball Club, and Rooftop Acquisition,
LLC
/s/ Thomas M. Lombardo_______________
By: Thomas M. Lombardo
One of their Attorneys
Thomas M. Lombardo (6279247)
Abraham Brustein (327662)
Di Monte & Lizak, LLC
216 Higgins Road
Park Ridge, IL 60068
847-698-9600 tel
847-698-9623 fax
[email protected]
[email protected]
80

Rooftop Response To Cubs' Motion To Dismiss

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Case: 1:15-cv-00551 Document #: 41 Filed: 03/02/15 Page 1 of 92 PageID #:1397

IN THE UNITED STATES DISTRICT COURT

Case No. 15cv551

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II. STANDARD ON MOTION TO DISMISS...1

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B. Ricketts Statement is Verifiably False and Not a Protected Opinion.67

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Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc.,

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Deal v. United States,

Case: 1:15-cv-00551 Document #: 41 Filed: 03/02/15 Page 7 of 92 PageID #:1403

Henderson Broadcasting v. Houston Sports Assn.,

Case: 1:15-cv-00551 Document #: 41 Filed: 03/02/15 Page 8 of 92 PageID #:1404

Lorain Journal Co. v. United States,

Case: 1:15-cv-00551 Document #: 41 Filed: 03/02/15 Page 9 of 92 PageID #:1405

Pampered Chef, Ltd. v. Alexanian,

Case: 1:15-cv-00551 Document #: 41 Filed: 03/02/15 Page 10 of 92 PageID #:1406

Siemer v. Quiznos Franchise Company LLC,

Case: 1:15-cv-00551 Document #: 41 Filed: 03/02/15 Page 11 of 92 PageID #:1407

Utility Audit, Inc. v. Horace Mann Service Corp.,

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Standard on Motion to Dismiss

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Major League Baseballs Antitrust Exemption Does Not Apply

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beautiful picture or a masterly performance of some drama; but the game

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commerce merely incidental to baseball as contemplated by Justice Holmes. Starting nearly

There is a Plausible Relevant Market for Plaintiffs Sherman Act Claims

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345 U.S. 594, fn. 31 (1953).

For antitrust purposes, product cross-elasticity and

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Elimination of the Competitor Rooftops will further diminish the competition in

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If unchecked, the Cubs Organizations anticompetitive conduct will adversely

Consequently, the Cubs Organization is a vertically integrated enterprise which

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Furthermore, the Cubs Organizations anticompetitive conduct was aimed

If unchecked, the Cubs Organizations anticompetitive conduct will adversely

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The Cubs Attempted to Reach an Unlawful Section 1 Result

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