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Wrigley Construction

Note: This is an update on a story that this blog previously commented on here.

The Chicago Cubs have formally filed in Federal District Court their response to the Rooftop Owners’ complaint alleging violations of the Lanham Act and other statutes by the Cubs.  In a swing for the fences-type of move, the Cubs have also made a Motion to Dismiss all of the Rooftop Owners’ claims, with prejudice.  If granted, not only would the Rooftop Owners’ allegations be dismissed out of hand without a chance to argue their case at trial, but they would be prevented from ever refilling the claims against the Cubs at a later date.  The Cubs’ move in this regard is hardly surprising.  A ‘Motion to Dismiss’ by the defendant at the onset of a lawsuit is fairly common practice, especially since a successful motion can avoid what would otherwise be a potentially expensive, time-consuming law suit.  The question that the deciding Judge will be asking when considering the Motion is whether or not, assuming that all the facts that Rooftop Owners have alleged in their complaint are true, is if the Rooftop Owners have actually brought forth a valid claim that is actionable under current law.  If the Judge decides that the Rooftop Owners haven’t, than the Motion will be granted.

The Cubs’ response to the complaint is available here.

As you may recall, the Rooftop Owners’ original complaint alleged that the Chicago Cubs violated the unfair competition portion of the Lanham Act due to the following statement made by Cubs Owner Tom Ricketts at a fan conference:

“It’s funny — I always tell this story when someone brings up the rooftops.  So you’re sitting in your living room watching, say, Showtime.  All right, you’re 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 they’re 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.  That’s basically what happened.”

The Rooftop Owners alleged that this comment damaged their business by essentially accusing them of being “thieves.”

Here is a quick rundown of the Cubs’ response to these allegations:

  • Ricketts never accused the Rooftop Owners of being thieves or otherwise engaged in any criminal conduct in his statement.  That’s basically true.  There is nothing per se illegal or criminal about standing in your own yard and watching your neighbor’s TV through his open window (or even going to the lengths to sell tickets to other neighbors to do the same. . .if you are lucky enough to live in a neighborhood where TV ownership per household is ridiculously low).  It’s really creepy. . .but not illegal.
  • The Rooftop Owners previously lost a similar lawsuit where the statement in question came much closer to accusing them of Criminal conduct.  The statement called the Rooftop Business, generically, “carpetbaggers stealing the product paid for by others for their own profit.”  The Court dismissed that claim.  The strong similarity of facts, plaintiffs and circumstances make this court decision compelling support for the Cubs’ defense.
  • Ricketts’ statement contained no false statements of fact, instead, it was a metaphorical story that amounts to a statement of opinion.  False statements of fact are actionable under the Lanham Act, and not statements of opinion (Example “Pizza Hut makes their pepperoni from dead cats” is a statement of fact whereas “Pizza Hut’s pepperoni tastes like it is made from dead cats.” is a statement of opinion. . .although I wouldn’t recommend using either one in an advertising campaign). The main test for whether a statement is one of ‘fact’ or ‘opinion’ is whether or not they can be objectively proven to be true or false. The Cubs are relying on the fact that Rickett’s statement was clearly a metaphor, and reflective of his feelings on the whole issue with the Rooftop Owners, especially given that it was in response to a fan’s question on whether the Rooftop Owners were delaying the renovation to Wrigley Field.  But still, it was metaphor that was meant to illustrate a factual situation.  It would be interesting to know if other Courts have found situations where metaphors were used to be defamatory regardless (if those court decisions do exist, you can expect the Rooftop Owners to bring those forward). But still, it’s going to be an uphill battle for the Rooftop Owners regardless to argue otherwise, since there isn’t really a direct assertion of criminal conduct by the Rooftop Owners.  Interesting to note that the Cubs never deny the Rooftop Owners assertion that the statement caused any actual harm to their business, although why should they if their argument is that the entire statement was non-defamatory in the first place?

One other interesting piece, although not related to the Lanham Act claim, is the Cubs’ response to the Rooftop Owners assertion that the installation of video boards and advertising signs at Wrigley would put the Cubs in breach of their license agreement with Rooftop Owners, in which the Cubs are obligated not to erect any ‘windscreens or other barriers’ that would block the view of the Rooftops into Wrigley Field.  The Cubs are pointing to basically the next sentence in the same section as the ‘no windscreens or barriers’ prohibition which says, “Any expansion of Wrigley Field approved by governmental authorities shall not be a violation of this Agreement, including this section.”  The Cubs point out that the current expansion, including the jumbotron and advertising signs along the outfield walls, were fully approved by the City of Chicago and historic landmarks division (Wrigley Field has been designated as a historic site). The argument is than that this sentence in the agreement fully permits the Cubs to block the view of the Rooftops, if part of an expansion that has received government approval. Unless there is some other section or term in the license agreement that changes the meaning of this sentence or provides further clarity, I do not think that the Rooftop Owners have much of an argument based on the license agreement.  The fact that the sentence on a government-approved expansion being permitted was placed in the same section as the prohibition against windscreens and barriers indicates to me that the parties always intend to exempt an expansion from that limitation.  There would be more room for doubt, however small, if this sentence was buried somewhere else in the agreement, making the license agreement seeming to contradict itself (in which case the Court would have to come up with some interpretation of the contradict that held both terms valid while upholding the original intent of the agreement between the parties).  However, in this case, I do not think there is really any confusion regarding the contractual meaning of that section – expansions to Wrigley were always intended to be exempt.  This development makes it clear why the Rooftop Owners did not heavily rely or emphasize their breach of contract claim in their original complaint.  It also means that perhaps the Chicago Cubs were not as foolish for signing the license agreement back in 2002, as I had originally opined.