In the
United States Court of Appeals
For the Seventh Circuit
No. 16‐3582
RIGHT FIELD ROOFTOPS, LLC, et al.,
Plaintiffs‐Appellants,
v.
CHICAGO CUBS BASEBALL CLUB, LLC,
et al.,
Defendants‐Appellees.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 15 C 551 — Virginia M. Kendall, Judge.
ARGUED MAY 23, 2017 — DECIDED SEPTEMBER 1, 2017
Before BAUER, EASTERBROOK, and RIPPLE, Circuit Judges.
BAUER, Circuit Judge. Plaintiffs‐appellants Right Field
Rooftops, LLC, doing business as Skybox on Sheffield; Right
Field Properties, LLC; 3633 Rooftop Management, doing
business as Lakeview Baseball Club; and Rooftop Acquisition,
LLC (the “Rooftops”), filed suit against defendants‐appellees
2 No. 16‐3582
Chicago Baseball Holdings, LLC; Chicago Cubs Baseball Club,
LLC; Wrigley Field Holdings, LLC; and Thomas S. Ricketts
(the “Cubs”), alleging that the Cubs violated antitrust laws
and breached an agreement in which the Rooftops provide the
Cubs 17% of their profits in exchange for the Cubs’ promise
not to obstruct the view of Wrigley Field (the “License Agree‐
ment”).
The Rooftops control two buildings and businesses that sell
tickets to view Cubs games and other events at Wrigley Field.
Both businesses are situated on the 3600 block of North
Sheffield Avenue in Chicago, Illinois. Spectators have long
enjoyed a view into Wrigley Field from the roofs of the
buildings on Sheffield and Waveland Avenues. In the mid‐
1980’s, rooftop owners gradually converted their flat‐topped
roofs into bleacher‐style grandstands and formed businesses
to serve the growing market for viewing Cubs games and other
Wrigley Field events. In 1998, the City of Chicago enacted an
ordinance formally allowing the rooftop businesses to operate
for profit. By 2002, there were eleven such businesses.
In 2000, the City began the process of naming Wrigley Field
a landmark. While the landmarking process unfolded, the
Cubs announced a proposal to expand the Wrigley Field
bleachers in 2001. Prior to the 2002 Major League Baseball
season, the Cubs installed a large green windscreen above the
outfield bleachers, obstructing the views from the rooftop
businesses on Sheffield Avenue.
On December 16, 2002, the Cubs filed suit against a number
of rooftop businesses, including the Rooftops, claiming that
they were misappropriating Cubs’ property by charging
No. 16‐3582 3
admission fees to watch Cubs games.1 Prior to the 2004
baseball season, the parties settled the suit by entering into the
License Agreement, in which the rooftop businesses agreed to
pay the Cubs 17% of their gross revenues in exchange for
views into Wrigley Field. The License Agreement expires on
December 31, 2023. Section 6 of the License Agreement
contemplated the expansion of Wrigley Field and established
protocols to facilitate such an expansion. The pertinent
provisions are as follows:
6. Wrigley Field bleacher expansion.
6.1 If the Cubs expand the Wrigley Field
bleacher seating and such expansion so
impairs the view from any Rooftop into
Wrigley Field such that the Rooftop’s
business is no longer viable unless it
increases the height of its available seat‐
ing, then such Rooftop may in its discre‐
tion lect to undertake construction to raise
the height of its seating to allow views
into Wrigley Field and the Cubs shall
reimburse the Rooftop for 17% of the
actual cost of such construction.
6.2 If the Cubs expand the Wrigley Field
bleacher seating and such expansion so
impairs the View from any Rooftop into
Wrigley Field such that the Rooftop’s
1
See Chi. Nat’l League Ball Club, Inc. v. Skybox on Waveland, et al., No. 02 C
9105, United States District Court for the Northern District of Illinois.
4 No. 16‐3582
business is no longer viable even if it were
to increase its available seating to the
maximum height permitted by law, and if
such bleacher expansion is completed
within eight years from the Effective
Date, then if such Rooftop elects to cease
operations … the Cubs shall reimburse
that Rooftop for 50% of the royalties paid
by that Rooftop to the Cubs …
…
6.4 If the Cubs expand the Wrigley Field
bleacher seating and such expansion
impairs the view from any Rooftop into
Wrigley Field such that the Rooftopʹs
Gross Revenue in the year of expansion is
more than 10% below the average Gross
Revenue for that Rooftop in the two years
prior to expansion … then the affected
Rooftop can seek a reduction in the Roy‐
alty rate for all subsequent years of the
Term … .
6.5 Nothing in this Agreement limits the
Cubs’ right to seek approval of the right
to expand Wrigley Field or the Rooftops’
right to oppose any request for expansion
of Wrigley Field.
6.6 The Cubs shall not erect windscreens or
other barriers to obstruct the views of the
Rooftops, provided however that tempo‐
No. 16‐3582 5
rary items such as banners, flags, and
decorations for special occasions, shall not
be considered as having been erected to
obstruct views of the Rooftops. Any ex‐
pansion of Wrigley Field approved by
governmental authorities shall not be a
violation of this Agreement, including
this section.
On February 11, 2004, the City completed the landmarking
process; Wrigley Field’s landmark designation limited future
alterations to the field. However, following the 2005 baseball
season, the Cubs were permitted to add approximately 1,790
bleacher seats.
In Fall 2009, the Ricketts family and certain related entities
purchased 95% of the Cubs and acquired Wrigley Field from
the Tribune Company. The acquisition was subject to the
preexisting License Agreement. Shortly thereafter, the Cubs
began to acquire ownership interests in a number of the
rooftop businesses,2 but failed in their attempt to purchase all
of them. In 2010, the Cubs announced plans to install a
2
The Cubs first acquired “Down the Line,” a rooftop business located at
3621 N. Sheffield. In total, six rooftop businesses changed hands: three
to the Cubs and three to unrelated investors. In conjunction with their
Rule 59(e) motion, the Rooftops provided documentation showing that the
holding companies that acquired six of the rooftop properties were owned
by Greystone, LLC, which in turn was owned by Northside Entertainment
Holdings, LLC. Northside, of which Ricketts serves as the executive vice
president, owns and operates the Chicago Cubs.
6 No. 16‐3582
“Toyota” sign in left field. Ricketts stated that the sign “[would
not] affect any rooftops and everyone will be able to see.”
In early 2012, the Cubs sought approval from the City for
several Wrigley Field renovations, including bleacher seating
expansion, an outfield sign package, and two video boards.
On April 15, 2013, the Cubs announced a new renovation
plan, which included a 6,000‐square‐foot video board in left
field and a 1,000‐square‐foot billboard in right field. The Cubs
released a mock‐up of its proposed renovation on May 28,
2013, to all the rooftop business owners, which revealed that
the rooftop businesses would be largely blocked by the
construction.
After numerous meetings and public hearings stretching
out over two years, where a number of rooftop businesses
appeared and objected to the proposed construction, the
Chicago Plan Commission, City Council, and Commission on
Chicago Landmarks approved the Cubs’ plan, including the
construction of the bleachers, video boards, and billboards. The
City approved the Cubs’ final plan to construct a total of eight
outfield signs above the bleachers, including a video board in
both left and right field.
During the approval process, the Rooftops contend that
Cubs’ representatives used the threat of blocking rooftop views
as leverage to force a sale of the rooftops to the Ricketts at
below‐market prices. The Rooftops allege that the Cubs
demanded the Rooftops set minimum ticket prices and that the
failure to do so would lead to having their views blocked. Once
the City approved the Cubs’ initial construction plan in July
2013, the Rooftops allege that the Cubs engaged a number of
No. 16‐3582 7
rooftop business owners in strong‐arm negotiations to pur‐
chase their properties. In May 2014, Ed McCarthy, one of the
owners of the Rooftops, proposed a potential sale to the Cubs
of both Rooftops. McCarthy offered to sell the Rooftops to the
Cubs for fair market value, but was met by a Cubs representa‐
tive stating that McCarthy should accept whatever sale terms
the Cubs offer because the buildings would be worth nothing
once they no longer had views into Wrigley Field. The Cubs
offered McCarthy a significantly lower price, and McCarthy
refused. The Cubs also told McCarthy that they would block
any rooftop business they did not purchase.
At the annual Cubs Convention held in January 2014, in
response to a question regarding the construction at Wrigley
Field, Ricketts stated:
Itʹs funny—I always tell this story when someone
brings up the rooftops. So youʹre sitting in your
living room watching, say, Showtime. All right,
youʹre 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 Rooftops contend that the audience, populated by the
media and ticket‐purchasing fans, interpreted this statement as
8 No. 16‐3582
an accusation that the Rooftops were stealing the Cubs’
property.
The Cubs began construction on their expansion project in
September 2014. The Cubs removed the outfield outer walls,
purchased approximately fifteen feet of sidewalk and street on
Waveland and Sheffield Avenues, increased the bleachers’
seating capacity by several hundred, and increased the bleach‐
ers’ height by approximately 40 feet. In total, the construction
entails new seats in the outfield bleachers, a new “fan deck” in
the bleachers, increased concessions, signs and video boards,
and new light systems.
The Rooftops filed suit against the Cubs on January 20,
2015, seeking relief for: (1) attempted monopolization; (2) false
and misleading commercial representations, defamation, false
light, and breach of the non‐disparagement provision; and (3)
breach of contract. Three weeks later, the Rooftops sought a
temporary restraining order and a preliminary injunction
enjoining the Cubs from constructing a video board. The
district court conducted a hearing, and on February 19, 2015,
it denied the motion for a TRO. On April 2, 2015, the court
denied the Rooftops’ motion for a preliminary injunction. The
Cubs moved to dismiss the complaint under Federal Rule of
Civil Procedure 12(b)(6). The court granted the Cubs’ motion
with prejudice on September 30, 2015.
Specifically, it dismissed the monopolization claims
because: (1) Major League Baseball’s antitrust exemption
applies to the Cubs; (2) the Rooftops failed to establish a
plausible relevant market; and (3) the Cubs cannot be limited
by antitrust law from distributing their own product. It
No. 16‐3582 9
dismissed the breach‐of‐contract claim because the plain
language of the contract did not limit expansions to the seating
capacity of Wrigley Field. The court dismissed the six remain‐
ing counts related to Ricketts’ statements because the Rooftops
failed to plausibly allege any “actionable false statement of
fact.”
The Rooftops moved to alter or amend the judgment under
Rule 59(e) and to file an amended complaint under Rule 15(a).
The Rooftops claimed to have discovered “new evidence” in
the form of public deeds from January and May 2015, indicat‐
ing that a corporate entity other than the Chicago Cubs had
purchased the competing rooftops. The Rooftops sought to
amend their antitrust claims: (1) to allege that “the business in
which the Rooftops are involved is not the ‘business of base‐
ball;’” (2) to modify the relevant market to include occasional
non‐baseball events at Wrigley Field; and (3) to allege that the
Cubs have no right to “sell views into Wrigley Field.”
The court denied both motions. It held that the Rooftops
were not entitled to relief under Rule 59(e) because the new
evidence was actually a matter of public record and readily
available, and therefore could not be considered “newly
discovered.” It also held that amending the complaint would
be futile because, even with the proposed amendments, the
Rooftops’ antitrust claims would still be subject to the baseball
exemption and lacked a plausible relevant market. This appeal
followed.
10 No. 16‐3582
I. DISCUSSION
We review de novo a district court’s decision granting a
motion to dismiss under Rule 12(b)(6), accepting all well‐
pleaded factual allegations in the complaint as true and
drawing all reasonable inferences in favor of the appellants.
St. John v. Cach, LLC, 822 F.3d 388, 389 (7th Cir. 2016). To avoid
dismissal, the complaint must “state a claim to relief that is
plausible on its face.” Jackson v. Blitt & Gaines, P.C., 833 F.3d
860, 862 (7th Cir. 2016) (quoting Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009)).
On appeal, the Rooftops challenge the district court’s
dismissal of their attempted monopolization, breach‐of‐
contract, and breach of the non‐disparagement provision
claims. The Rooftops also contend that district court erred in
denying their motion to amend. We will address each argu‐
ment in turn.
A. Attempted Monopolization
The Rooftops contend that certain conduct by the Cubs
constitutes monopolistic behavior in violation of the Sherman
Act, 15 U.S.C. § 1, et seq., including: attempting to set a mini‐
mum price for tickets; attempting to purchase all rooftop
businesses; acquiring several rooftop businesses, threatening
to obstruct views of rooftop businesses if they refuse to sell to
the Cubs; and constructing the video board that blocks the
Rooftops’ views.
The Supreme Court first exempted the business of baseball
from federal antitrust laws almost a century ago in Federal
Baseball Club of Baltimore v. National League of Professional
No. 16‐3582 11
Baseball Clubs, 259 U.S. 200 (1922). In Federal Baseball, the Court
held that the Sherman Act had no application to the “business
[of] giving exhibitions of base ball” because such “exhibitions”
are “purely state affairs.” Id. at 208. In Toolson v. New York
Yankees, Inc., 346 U.S. 356, 357 (1953) (per curiam), the Court
reaffirmed Federal Baseball’s holding, reasoning that the
business of baseball had “been left for thirty years to develop,
on the understanding that it was not subject to existing
antitrust legislation.” Therefore, “if there are evils in this field
which now warrant application to it of the antitrust laws it
should be by legislation.” Id. Finally, in Flood v. Kuhn, 407 U.S.
258, 283–84 (1972), the Court noted that Congress had acqui‐
esced in the baseball exemption and thus “by its positive
inaction … clearly evinced a desire not to disapprove [it]
legislatively.” See Charles O. Finley & Co. v. Kuhn, 569 F.2d 527,
541 (7th Cir. 1978) (discussing Federal Baseball and its progeny
before concluding that “the Supreme Court intended to exempt
the business of baseball, not any particular facet of that
business, from the federal antitrust laws.”).
Eventually, Congress took action to narrow the scope of the
baseball exemption in 1998 with the passage of the Curt Flood
Act, 15 U.S.C. § 26b. The Act established that “the conduct,
acts, practices, or agreements of persons in the business of
organized professional major league baseball directly relating
to or affecting employment of major league baseball
players … are subject to the antitrust laws … .” 15 U.S.C.
§ 26b(a). The Rooftops do not—and cannot—plausibly contend
that this carve‐out applies to the Cubs’ conduct, as it is
unrelated to the employment of Major League Baseball players.
12 No. 16‐3582
Instead, the Rooftops argue that their claims are outside the
scope of the baseball exemption because they do not concern
the “rules and restrictions related to baseball itself.” As an
initial matter, the Rooftops’ suggested “rules and restrictions”
litmus test is not supported by case law. However, we have
recognized limits to the scope of the exemption. In Charles
O’Finley, we found that “[the] exemption does not apply
wholesale to all cases which may have some attenuated
relation to the business of baseball.” 569 F.3d 541 n.51. But we
do not view the Cubs’ conduct as attenuated to the business of
baseball. By attempting to set a minimum ticket price, purchas‐
ing rooftops, threatening to block rooftops with signage that
did not sell to the Cubs, and beginning construction at Wrigley
Field, the Cubs’ conduct is part and parcel of the “business of
providing public baseball games for profit” that Federal Baseball
and its progeny exempted from antitrust law. See Toolson, 346
U.S. at 357.
The Rooftops also contend that the exemption is inapplica‐
ble to Count II, which involved the acquisition of other rooftop
businesses, because Ricketts, rather than the Cubs, engaged in
the anticompetitive conduct. The district court dismissed this
argument, recognizing that the Supreme Court applied the
baseball exemption in Toolson, in which the defendants
included both the owner and general manager of the Cin‐
cinnati Baseball Club. See Corbett v. Chandler, 202 F.2d 428 (6th
Cir. 1953) (per curiam), affʹd sub nom., Toolson, supra. We agree
with the district court.
Finally, the Rooftops argue that the exemption is inapplica‐
ble because their business is “not to publicly display baseball
games,” but instead “to sell views of live events inside”
No. 16‐3582 13
Wrigley Field, including concerts, Big 10 football games, and
professional hockey games. As the Cubs correctly point out,
this contention is at odds with their complaint, which alleges
attempted monopolization of “the market for watching Live
Cubs Games.” It is also belied by the Rooftops’ brief, which
concedes, as it must, that “the most significant portion of the
Rooftops’ current business is to sell views of Cubs games … .”
Nonetheless, the business model of the Rooftops is not deter‐
minative. The relevant inquiry is whether the Cubs’ challenged
conduct falls within the business of providing public baseball
games for profit, and we have already found that it does.
Consequently, the Rooftops’ antitrust claims are subject to the
baseball exemption, and were properly dismissed.3
B. Breach of Contract
The Rooftops contend that the Cubs violated the License
Agreement by constructing the video board that blocks the
views of Wrigley Field from the Rooftops.4 Section 6.6 of the
License Agreement states the following: “The Cubs shall not
erect windscreens or other barriers to obstruct the views of the
Rooftops … . Any expansion of Wrigley Field approved by
governmental authorities shall not be a violation of this
Agreement, including this section.”
3
Having determined that the antitrust claims were properly dismissed, we
will forego an analysis of the Rooftops’ relevant market and distribution
arguments.
4
Although the Rooftops’ complaint seeks relief for an anticipatory breach
of contract, we will analyze this claim as a breach of contract, as the district
court did, because the video board has been constructed.
14 No. 16‐3582
The basic rules of contract interpretation under Illinois law
are well settled. In construing a contract, the primary objective
is to give effect to the intention of the parties. Gallagher v.
Lenart, 874 N.E.2d 43, 58 (Ill. 2007) (citation omitted). “A court
must initially look to the language of a contract alone, as the
language, given its plain and ordinary meaning, is the best
indication of the parties’ intent.” Id. (citation omitted). A
contract must be construed as a whole, viewing each provision
in light of the other provisions. Id. (citation omitted). “If the
words in the contract are clear and unambiguous, they must be
given their plain, ordinary and popular meaning.” Cent. Ill.
Light Co. v. Home Ins. Co., 821 N.E.2d 206, 213 (Ill. 2004)
(citation omitted). However, if the language of the contract is
susceptible to more than one meaning, it is ambiguous.
Gallagher, 874 N.E.2d at 58 (citation omitted). If the contract
language is ambiguous, a court can consider extrinsic evidence
to determine the parties’ intent. Id.
The Rooftops argue that the entirety of § 6 contemplates
bleacher expansion, including remedies for various types of
bleacher expansion such as sharing the cost of increasing the
height of the Rooftops’ seating (§§ 6.1, 6.3), or renegotiating the
royalty rate (§ 6.4). The Rooftops’ argument relies in part on
the fact that the title of § 6 is “Wrigley Field bleacher expan‐
sion[.]” Thus, the Rooftops conclude that the term “any
expansion” in § 6.6 refers only to the expansion of bleacher
seating, rendering the construction of the video board a
violation of the License Agreement. We disagree.
As an initial matter, we note that the Rooftops’ argument is
contrary to the plain, unambiguous language of the provision.
If the parties wished to clarify that “any expansion” meant
No. 16‐3582 15
“bleacher expansion,” they could have done so. This is particu‐
larly evident in light of the fact that every reference to an
expansion in §§ 6.1 through 6.4 specifies “bleacher seating”
expansion, and only §§ 6.5 and 6.6 use the general term
“expansion.” “[W]hen parties to the same contract use such
different language to address parallel issues … it is reasonable
to infer that they intend this language to mean different
things.” Taracorp, Inc. v. NL Indus., Inc., 73 F.3d 738, 744 (7th
Cir. 1996) (analyzing Illinois law). Thus, we presume that the
use of the general term “any expansion” in §§ 6.5 and 6.6 is an
intentional departure from the prior sections’ use of “bleacher
seating” expansion.
In response, the Rooftops, relying on BeerMart, Inc. v. Stroh
Brewery Co., 804 F.2d 409, 411 (7th Cir. 1986), argue that “where
the parties have agreed upon a specific term, an apparently
inconsistent general statement must yield to the more specific
term.” The Rooftops contend that the prohibition on “wind‐
screens and other barriers” is a specific term, and the exception
of “any expansion” is a general term that must yield. First, we
note that BeerMart analyzed Indiana law, not Illinois. However,
even if this principle of construction is applicable under Illinois
law, it is only applicable where a specific and general term
“cannot stand together.” BeerMart, 804 F.2d at 411. These two
sentences are not inconsistent or contradictory. The second
sentence clarifies that the prohibition of windscreens and
other barriers in the first sentence is not applicable to
any government‐approved expansion. Therefore, BeerMart’s
construction principle is inapplicable.
The Rooftops argue that our proposed construction renders
the first sentence of § 6.6 meaningless. In their view, the video
16 No. 16‐3582
board is a barrier that obstructs the view of the Rooftops.
Following their train of logic, a video board or any other
construction that blocks views into Wrigley Field, whether
government‐approved or not, would be impermissible under
the License Agreement. But this assertion is contrary to the
plain language of the provision, which carved out government‐
approved expansion from the list of prohibited items.
Section 6.6 makes it clear that any government‐approved
expansion “shall not be in violation of this Agreement, includ‐
ing this section.” (emphasis added). This is in direct reference to
the prohibition on windscreens or other barriers in the preced‐
ing sentence. Again, the Rooftops’ interpretation asks us to
ignore the plain language of the provision. The first sentence
is not meaningless; any windscreen or other barrier that is not
government‐approved is still prohibited under the License
Agreement.
The Rooftops also argue that our reading of § 6.6 dis‐
harmonizes the other provisions of the License Agreement,
specifically the 17% royalty provision in § 3. The Rooftops
contend that if the royalty obligation remains in “full‐force”
despite their obstructed views, they will have “assumed
enormous risks and got nothing in return.” See Curia v. Nelson,
587 F.3d 824, 832 (7th Cir. 2009). The Rooftops fail to acknowl‐
edge that to the extent their revenues are negatively impacted
by the video board, the Cubs’ royalties will decrease propor‐
tionately.
But more to the point, the Rooftops fail to acknowledge
that a primary function of a contract is to allocate risks be‐
tween parties. Here, the risk is that future expansions of
Wrigley Field will obstruct the Rooftops’ views. Section 6.5
No. 16‐3582 17
provides a mechanism for the parties to dispute the Cubs’
proposed expansion projects. Section 6.6 declares that if the
Cubs prevail in the dispute, their projects may proceed. That
is precisely what occurred here—the Rooftops vigorously
opposed the Cubs’ expansion efforts, but ultimately lost. The
parties were free to allocate risk in a different manner, but
chose not to do so. See McClure Eng’g Assocs., Inc. v. Reuben H.
Donnelly Corp., 447 N.E.2d 400, 402–03 (Ill. 1983) (recognizing
“a widespread policy of permitting competent parties to
contractually allocate business risks as they see fit.” (collecting
cases)). Absent a defect in the negotiation process, such as
disparity in bargaining power, absence of meaningful choice
on the part of one party, or the existence of fraud, duress, or
mistake, we will not second‐guess that allocation. Dana Point
Condo. Ass’n, Inc. v. Keystone Serv. Co., a Div. of Cole Coin
Operated Laundry Equip., Inc., 491 N.E.2d 63, 66 (Ill. App. Ct.
1986).
We do not view the royalty provision in § 3 as an inappro‐
priate allocation of risk. Similarly, we do not find that our
reading of the License Agreement “disharmonizes” the
marketing promotion provision in § 7, as even with obstructed
views, both parties benefit financially by the Cubs’ continued
promotion of the Rooftops.
Because the video board falls within the plain language of
the carve‐out for government‐approved expansions in § 6.6,
we find that it is not in violation of the License Agreement.
Accordingly, the Rooftops’ breach of contract claim fails.
18 No. 16‐3582
C. Non‐Disparagement Provision
In addition to § 6, the Rooftops argue that Ricketts violated
§ 8.2, the License Agreement’s non‐disparagement provision,
with his remarks at the 2014 Cubs Convention.5 Section 8.2
states that “[t]he Cubs will not publicly disparage, abuse or
insult the business of any Rooftop or the moral character of
any Rooftop or any Rooftop employee.” Under Illinois law,
disparagement is defined as “statements about a competitor’s
goods which are untrue or misleading and are made to
influence or tend to influence the public not to buy.” Lexmark
Int’l, Inc. v. Transp. Ins. Co., 761 N.E.2d 1214, 1225 (Ill. App. Ct.
2001) (citation and brackets omitted). The district court found
that the Rooftops failed to establish that Ricketts’ statement
was untrue or misleading. We agree.
Ricketts voiced his opinion as to the nature of the relation‐
ship between the Cubs and the Rooftops at the 2014 Cubs
Convention. Illinois courts have refused to find this type of
hyperbolic, opinion statement as actionable. See Xlem De‐
watering Solutions, Inc. v. Szablewski, No. 5‐14‐0080, 2014 WL
4443445, *5 (Ill. App. Ct. Sept. 8, 2014) (“[S]tatements of
opinion cannot form the basis for a commercial disparagement
claim.” (citation omitted)); Pease v. Intʹl Union of Operating
Eng’rs Local 150, et al., 567 N.E.2d 614, 619 (Ill. App. Ct. 1991)
5
Ricketts’ remarks also formed the basis of the Rooftops’ claims under the
Lanham Act, the Uniform Deceptive Trade Practice Act, and the Illinois
Consumer Fraud and Deceptive Business Practices Act, as well as claims for
defamation and false light. The Rooftops do not challenge the dismissal of
these claims, and thus we limit our discussion to the breach of the non‐
disparagement provision of the License Agreement.
No. 16‐3582 19
(“Words that are mere name calling or found to be rhetorical
hyperbole or employed only in a loose, figurative sense have
been deemed nonactionable.” (citation omitted)). We do not
find Ricketts’ statement to be “untrue or misleading,” as it is
not a factual assertion whose veracity can be proven.
Furthermore, it is not the type of statement that Illinois
courts have found to be “untrue or misleading[.]” In Pekin
Insurance Company v. Phelan, the defendant attempted to lure
customers away from her employer’s salon by falsely telling
them that the salon was either closing or moving to a new
location. 799 N.E.2d 523, 524 (Ill. App. Ct. 2003). In addition to
telling customers that the salon was relocating, she provided
them with the address of her newly opened salon. Id. The court
found her statements to be untrue and misleading. Id. at 526.
The Pekin defendant told an objectively false statement to
mislead customers and ultimately lure them away. In contrast,
Ricketts’ statement was an analogy to explain his perspective
on the contentious relationship between the Cubs and
Rooftops—it was neither untrue nor misleading. Therefore, we
find that Ricketts’ statement did not violate the License Agree‐
ment’s non‐disparagement provision.
Seeking to avoid this result, the Rooftops argue that
because they assert a breach of contract claim rather than a
common law disparagement claim, we should apply principles
of contract interpretation by analyzing the specific language
in § 8.2 to determine if a breach has occurred. Consequently,
the Rooftops contend that any statement that “abuse[s]” or
“insult[s]” the Rooftops also breaches the non‐disparagement
provision.
20 No. 16‐3582
To make this argument, the Rooftops rely on Rain v. Rolls‐
Royce Corp., 626 F.3d 372, 380–81 (7th Cir. 2010), in which we
used the dictionary definition of “disparage” to determine if a
non‐disparagement agreement had been violated under
Indiana law. While this approach may have been appropriate
under Indiana law, the Rooftops have not cited to any Illinois
cases following a similar approach. Moreover, Illinois cases
such as Pekin and Lexmark involve non‐disparagement provi‐
sions of insurance policies, which are analyzed similarly to
contracts; those courts used the “untrue or misleading”
standard to analyze claims arguing breach of the policies’ non‐
disparagement provisions. 799 N.E.2d at 526; 761 N.E.2d at
1218, 1225. Consequently, we reject the Rooftops’ attempt to
broaden the scope of the non‐disparagement provision.
D. Motion to Amend
The Rooftops argue that the district court erred in denying
their motion to amend. Rule 15 provides that, as a general rule,
a court “should freely give leave [to amend] when justice so
requires.” Fed. R. Civ. P. 15(a)(2). District courts, nevertheless,
“have broad discretion to deny leave to amend where there is
undue delay, bad faith, dilatory motive, repeated failure to
cure deficiencies, undue prejudice to the defendants, or where
the amendment would be futile.” Arreola v. Godinez, 546 F.3d
788, 796 (7th Cir. 2008). Generally, we review a district court’s
denial of leave to amend for an abuse of discretion. Runnion v.
Girl Scouts of Greater Chi. & Nw. Ind., 786 F.3d 510, 524 (7th Cir.
2015). However, “our review for abuse of discretion of futility‐
based denials includes de novo review of the legal basis for the
futility.” Id.
No. 16‐3582 21
Here, the district court determined that the Rooftops’
proposed amendments would be futile. The Rooftops’ pro‐
posed amendments addressed their antitrust claims. The
Rooftops sought to include Northside Entertainment Holdings,
LLC as a defendant in an attempt to evade the Sherman Act’s
baseball exemption. However, Ricketts operates this entity,
and it, in turn, owns and operates the Cubs. Based on our
discussion of Toolson above, we find that the baseball exemp‐
tion applies with equal force to Northside. If the exemption
applied to the owner and general manager in Toolson, we see
no reason that it would not extend to the entity that owns the
Cubs, and the Rooftops have not offered a compelling one.
Furthermore, according to the Rooftops’ amended complaint,
Northside is engaged in the same conduct as the other Cubs
defendants that we already found exemplifies “the business of
providing public baseball games for profit.” Consequently, we
agree with the district court that this amendment would be
futile, as the baseball exemption applies to Northside. Based
on this conclusion, we need not review the Rooftops’ addi‐
tional proposed amendments regarding the relevant market.
II. CONCLUSION
We AFFIRM the district court’s dismissal of the Rooftops’
suit.