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A Legal Viewpoint On The Rooftops/Cubs Lawsuit

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Here's a view of the issues raised in the rooftop lawsuit from an attorney.

The owners of Skybox on Sheffield are one of the plaintiffs in the current lawsuit against the Cubs
The owners of Skybox on Sheffield are one of the plaintiffs in the current lawsuit against the Cubs
Jonathan Daniel/Getty Images
I sent the link posted yesterday to the 58-page lawsuit filed by a couple of the Wrigley rooftop owners against the Cubs (and Tom Ricketts personally) to an attorney I know who is also a Cubs fan. It's here if you want to follow along with what he sent me in reply (link opens .pdf):
The first two counts arise under the Sherman Act. Unfortunately for the plaintiffs, for almost 100 years professional baseball has been exempt from the scope of federal antitrust laws, of which the Sherman Act is an example. The U.S. Supreme Court first ruled this way in 1922 (Federal Baseball Club of Baltimore v. National League of Professional Baseball Clubs) and reiterated it as recently as 1972 (Flood v. Kuhn). In the latter opinion it was specifically noted that any remedy to this exemption would require an act of Congress, not the judiciary. This has obviously not happened, and it is not likely to ever happen. I don't see any way for the plaintiffs to get around this even with the somewhat unusual nature of their claim; the language in case law is explicit, and if a federal court starts carving out exceptions, the entire premise of this exemption would fall into question.

Count three alleges a violation of the Lanham Act, which is a federal trademark statute. This count is the only legitimate basis for this suit to have been filed in federal court, and the plaintiffs' allegation is that of false and misleading commercial representations, mostly based on Tom Ricketts' analogy about the rooftops being similar "to a person charging people money to wrongfully watch a neighbor's pay-television through their window." (This statement forms the basis of later counts as well.) The suit makes vague allegations about how this statement's dissemination has harmed their business because its false and misleading nature has led to, among other things, a public boycott of the rooftops. The specifics of this allegation would have to be proven at some point and it would likely be difficult for the plaintiffs to do so.

Counts four and five are largely identical to count three. The only difference seems to be that these counts are based on Illinois state law and not federal law. They reference the same allegedly misleading statement by Ricketts.

Count six alleges defamation per se by Ricketts' statement. This count is potentially stronger for the plaintiffs than the first five because, in general, is only requirement of defamation per se is that the statement was injurious to another in their trade, business, or profession. If so, damages are presumed and do not have to be proven. Truth, of course, is a defense to defamation, but the existence of the contract between the Cubs and the rooftops likely dispenses with a successful argument that Ricketts' statement was true.

Count seven alleges that Ricketts' statement placed the plaintiffs in a false light. This allegation is somewhat similar to defamation in that it requires publication. It also requires that the statement be highly offensive to a reasonable person, that it was made with actual malice, and that it was made with actual knowledge that it was false.

Count eight alleges anticipatory breach of contract and is similar to lawsuits that have already been filed challenging the ability of the Cubs to make approved renovations to Wrigley Field, both inside and outside the park. This count necessarily is tied to the language in the original contract between the Cubs and the rooftops and the legality of any renovations.  Whether this count would be likely to succeed in federal count remains to be seen.

Count nine alleges that Ricketts' statement constituted a breach of contract (the original contract between the Cubs and the rooftops) in that it disparaged the rooftops' business in violation of a specific clause not permitting such statements. Though the plaintiffs may have a common sense argument here, proving actual damages will, consistent with the other counts, likely be difficult.

I cannot say with any degree of certainty how likely it will be for the plaintiffs to obtain a permanent injunction in federal court, let alone obtain monetary damages. It's possible this suit is merely a nuisance, but it's also possible it could be a larger thorn in the Cubs' side, especially if it is in front of a plaintiff-friendly judge. As always, only time will tell.

That's a detailed summary, and I think gives a good jumping-off point for further discussion of this lawsuit, which we began here yesterday. The Cubs issued a statement via Andrew Kassof of Kirkland & Ellis LLP, who is serving as their attorney on this matter:

“The Cubs will vigorously contest this lawsuit and move forward confidently with the Wrigley Field Expansion construction project, which is well underway. Wrigley Field's expansion and renovation is in the best interest of the team, its fans, Major League Baseball and the City of Chicago."

You'll note again the careful use of the word "expansion" to describe the current project, which is something the Cubs have done throughout this process to protect their position under the contract. We'll see what the next move is.