rooftops' preliminary injunction reply

1

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, ) Case No. 15cv551 ) Plaintiffs, ) Hon. Virginia M. Kendall ) v. ) Magistrate Judge Michael T. Mason ) CHICAGO BASEBALL HOLDINGS, LLC; ) CHICAGO CUBS BASEBALL CLUB, LLC; ) WRIGLEY FIELD HOLDINGS, LLC; and ) THOMAS S. RICKETTS, ) ) Defendants. )

REPLY IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

The plaintiffs (collectively, the “Plaintiffs”), for their Reply in Support of Plaintiffs’

Motion for Preliminary Injunction, state as follows:

I. Irreparable Harm

The Defendants contend that the Plaintiffs will not suffer irreparable harm before trial.

[Doc. 27, pp. 9-15.] They argue there is no evidence customers will stop patronizing the

Plaintiffs businesses if there are no views. The Defendants also argue that the Plaintiffs can

survive for a year without any business, and reopen in 2016 if they win the trial. But these

arguments are premature as no evidentiary hearing has taken place yet. Furthermore, these

arguments are based on false assumptions and are easily disproven.

The Defendants are so focused on whether the Plaintiffs already sold some tickets for the

2015 season that they fail to see that the Plaintiffs might lose their entire product supply. Once

Case: 1:15-cv-00551 Document #: 47 Filed: 03/06/15 of 15 PageID #:1550

2

the video boards are installed, the Plaintiffs will have nothing to sell. The Plaintiffs are in the

Rooftop Business. They charge customers money to watch baseball games and other live events

as those events take place inside Wrigley Field. They are not a tavern; they are not a nightclub;

they are not a restaurant. Without a view into Wrigley Field, there is no product to sell. Just as a

Ford dealer will necessarily be put out of business completely without a supply of vehicles from

Ford, the Plaintiffs will necessarily be put out of business without a supply of views from the

Defendants. See Semmes Motors, Inc. v. Ford Motor Co., 429 F.2d 1197 (1970).

The Defendants seem to suggest that the Plaintiffs have an obligation to reinvent

themselves as a completely different type of business and operate without views. But the

Defendants do not cite a single case for this proposition. To the contrary, the cases cited by the

Defendants finding a lack of irreparable harm typically involved businesses with more than one

product or customer, and consequently the loss of just one contract would not spell certain doom.

For example, in Roland Mach. Co. v. Dresser Indus., Inc., 749 F.2d 380 (7th Cir. 1984),

the appellate court found that the plaintiff would not go out of business absent injunctive relief.

Id. at 391. The court noted that the plaintiff was engaged in several other lines of business, and

that the plaintiff projected some of that other business to improve soon. Id. Because injunctive

relief is only concerned with the period before trial, the court thus concluded that the would

survive till trial, and injunctive relief was improper. Id.

Similarly, in Instant Air Freight Co. v. C.F. Air Freight, Inc., 882 F.2d 797 (7th Cir.

1989), the appellate court reversed an injunction prohibiting the defendant from terminating its

air freight handling services contract with the plaintiff. Id. at 798. Irreparable harm was not

shown because: (i) the plaintiff only provided 80% of its business to the defendant, (ii) the

plaintiff always had the right to seek business from others and did in fact perform 20% of its


3

business for others, and (iii) the plaintiff knew it was losing the subject contract in less than 19

months anyhow. Id. at 802.

These two cases are unlike Semmes, however, where the plaintiff only sold Ford vehicles

and Ford terminated its franchise during unrelated fraud litigation. 429 F.2d at 1197, 1205.

There, the court approved of injunctive relief where the only product supply was in jeopardy,

reasoning, “But the right to continue a business…is not measurable entirely in monetary terms;

the Semmes want to sell automobiles, not live on the income from a damages award.” Id.

Knowing full well that the Plaintiffs exist for the sole purpose of selling a single product,

tickets to live events, the Defendants attempt to question whether consumers will cease

patronizing Plaintiffs’ businesses if the views are blocked. In questioning this, the Defendants

incorrectly state that the Plaintiffs have sold over 60% of their 2015 tickets already. [Doc. 27, p.

12.] The Defendants’ assumption is erroneous.

Plaintiffs have only sold 5,929 tickets, or just 17.54% of their combined 33,800-ticket

supply for 2015. [Declaration of Marc Anguiano, Exhibit 1, ¶¶ 6-7, 15-16.] The Plaintiffs’

websites only indicate that “Online Tickets are Unavailable,” and that customers should “Call for

more info,” because group sales and premium dates are the focus this early in the season. [Ex. 1,

¶ 17.] Selling premium dates to groups first, and then filling in extra capacity at a later date with

online ticket sales, maximizes overall sales volume and revenue. [Ex. 1, ¶ 17.]

The Defendants then speculate that since the Plaintiffs have supposedly sold 60% of their

2015 tickets, customers must not really care about views and will still patronize the Plaintiffs’

rooftop businesses without any views into Wrigley Field. Thus the Defendants are lobbing

guesses in a misguided effort to place a heavier burden on the Plaintiffs to prove the utterly


4

obvious. Once again, the Plaintiffs are rooftop businesses, nothing more. They sell views. If

people want a different product, they buy it from someone that sells that other product.

As of March 6, 2015, only one group customer, with just 20 tickets worth just $2,500 in

revenue, has advised the Plaintiffs that they would still have their event if the video board is

installed. [Ex. 1, ¶ 10.] This represents a mere 0.7% of groups of 10+ that want to proceed with

an event and no views. But 26 of the 31 groups of 10+ contacted, or 2,667 of 2,826 tickets,

intend to cancel their events if the video board is installed. [Ex. 1, ¶ 9.] Just four groups,

representing 139 tickets and $20,451.31 in non-discounted revenue, said they might still hold

their event if the video board is installed, but that they would need a large discount. [Ex. 1, ¶ 11.]

Therefore, the Plaintiffs are going to lose between 94.3% and 99.3% of group of 10+ sales. [Ex.

1, ¶ 12.]

Moreover, the Defendants’ theory that the Plaintiffs could just close down for a year, and

then come back in 2016 or 2017 if they win the trial, ignores commercial reality. The Plaintiffs’

only significant source of revenue is ticket sales. [Declaration of Chris Bue, Doc. 39, ¶¶ 7, 18.]

Plaintiff Skybox must pay an average of $54,273.84 per month in mortgage and real estate tax

payments. [Doc. 39, ¶ 11.] Plaintiff Lakeview Club must pay an average of $20,876.25 per

month in mortgage and real estate tax payments. [Doc. 39, ¶ 22.] Neither Skybox nor Lakeview

Club has enough cash on-hand to make their mortgage and real estate tax payments, and without

new ticket revenue they will both become insolvent immediately. [Doc. 39, ¶¶ 13-16, 24-27.]

Moreover, the fact that some of Plaintiffs’ customers might not contractually be entitled to a

refund ignores the commercial reality of operating a service business, which has developed

substantial good will over a number of years. Maybe the Cubs would stab their own customers

in the back, but this does not mean that the Plaintiffs must, or should.


5

Crane Kenney once said to Ed McCarthy, one of the Plaintiffs’ owners, “…once we put

up the signs you don’t have a Rooftop Business.” [Complaint, Doc. 1, ¶ 95.] Kenney stated to

McCarthy on another occasion, “How hard is it going to be to sell tickets when you have no

glimpse of Wrigley Field.” [Doc. 1, ¶ 96.] Now the Defendants change their tune because it suits

their litigation strategy, and spin these well-known facts, opportunistically arguing that the

Plaintiffs can just sit it out for a year, then come back after the trial and resume their business.

But the Defendants know full well that the video board’s installation will destroy the Plaintiffs’

business. Indeed, this is the very reason that the Defendants moved the video board away from

their newly-acquired rooftop businesses and placed it directly in front of their competition. [Doc.

1, ¶¶ 97, 101-102.] This warrants injunctive relief. See Cleveland Hair Clinic, Inc. v. Puig, 968

F. Supp. 1227, 1246-47 (N.D. Ill. 1996). (Awarding preliminary injunction to save destruction of

business where defendant’s own testimony confirmed that he knew the plaintiff would have

difficulty surviving if it did not accede to the defendant’s illicit demands.) The Defendants also

clearly know that when someone misses mortgage payments, like a Rooftop Business, they get

foreclosed on, liquidated and sold for pennies on the dollar. [Doc. 1, ¶ 103.]

The Defendants do not deny that, “…economic loss that threatens the survival of a

plaintiff’s business can amount to irreparable harm.” Power Mobility Coal. v. Leavitt, 404 F.

Supp. 2d 190, 204 (D.D.C. 2005); see also, Nat’l Mining Ass’n v. Jackson, 768 F. Supp. 2d 34,

50 (D.D.C. 2011); Semmes, 429 F.2d at 1205. Instead, they just cite to cases which denied

injunctive relief for entirely other reasons.

In Power Mobility, the plaintiffs sold power wheelchairs which were paid for by

Medicare reimbursements. 404 F. Supp. 2d at 192. The plaintiffs complained that new Medicare

billing requirements were burdensome and speculated they might result in a larger number of


6

claim denials. Id. at 203. The court stated, “The plaintiffs make this prediction without having

ever filed a claim for reimbursement and having the claim denied under the new rule, and

without adhering to the claim presentment requirement and the exhaustion of administrative

remedies.” Id. at 205. Furthermore, the defendant testified that claim denial rates were

anticipated to decline under the new rule. Id. Unlike Power Mobility, here the Defendants want

to cut off all product supply to the Plaintiffs. There is not just a new set of billing guidelines,

administrative, or procedural rules for the Plaintiffs to follow in order to keep their supply of

views. There is a wholesale denial of access to supply taking place. This case is inapposite.

In Nat’l Mining, the plaintiff complained that the government’s restrictive permitting

process for certain coal mining activity was slower than the law allowed. 768 F. Supp. 2d at 39-

40, 47. The plaintiff’s president asserted that his company was surviving week-to-week, and

would be out of business in eighteen months absent injunctive relief and issuance of the permits.

Id. at 51. The plaintiff did not offer a projection of future losses, tie it into an accounting, or

otherwise explain his eighteen month conclusion. Id. at 52. This, according to the court, was

therefore speculative. Id. Here, by the end of an evidentiary hearing, there will be plenty of

evidence, unlike in Nat’l Mining. Some has already been presented. [Doc. 39; Ex. 1.] The

Plaintiffs have a single source of income: ticket sales. The tickets are for views of live events at

Wrigley Field. The Defendants are eliminating those views. The Plaintiffs have no other source

of revenue. The Plaintiffs have fixed monthly costs. These costs cannot be covered absent ticket

revenue. What additional facts do the Defendants desire?

The Defendants next claim that fixed-length contract disputes preclude injunctive relief.

[Doc. 27, p. 15.] This is not a valid proposition of law, and the Defendants’ cases support no

such thing. In Marketing Werks, Inc. v. Fox, 2013 WL 5609339 (N.D. Ill. Oct. 11, 2013), this


7

Court denied an injunction because the harm to the plaintiff was not irreparable, and it was not

without an adequate remedy at law. Id. at *1. Moreover, while the fixed-length contract

reflected an ability to calculate damages, the plaintiff was not claiming that it would be forced

out of business without that one-year contract. Id. at *3. To the contrary, this Court noted that

the monetary loss to the plaintiff was likely just a small portion of its annual revenues. Id.

Likewise, in Instant Air Freight, the plaintiff was only going to lose 80% of its revenue

without an injunction, always had the ability to seek other customers, and knew it would have to

find other customers in just 19 more months when its contract expired. 882 F.2d at 802. None of

these cases support the proposition of law that fixed-term contracts prohibit injunctive relief.

Furthermore, even if there was a rule that a fixed-length contract could not support

injunctive relief (and there is not), it would have no effect on the injunctive relief sought by the

Plaintiffs under the Sherman Act. As acknowledged by defense counsel at the TRO hearing, the

Plaintiffs’ Sherman Act claims are entirely independent of their 20-year contract. The non-

renewal of a contract does not come with the right to commit anticompetitive acts and attempt to

monopolize a market in violation of the Sherman Act.

II. Adequate Remedy at Law

According to Roland, an award of money damages is inadequate if: (i) “The damage

award may come too late to save the plaintiff’s business,” and (ii) “The plaintiff may not be able

to finance his lawsuit against the defendant without the revenues from his business that the

defendant is threatening to destroy.” 749 F.2d at 386. This is the correct, controlling Seventh

Circuit precedent to apply to this case.

The Defendants devote a substantial amount of time arguing that it is possible to calculate

the Plaintiffs’ damages under a number of different methods or formulas. [Doc. 27, pp. 15-24.]


8

They even offer the affidavit of a proposed business valuation expert. [Doc. 27, Ex. 11.] But

none of this matters because the Plaintiffs are going to be destroyed in this case, and for that

reason it is well-settled that money damages are not an adequate remedy at law. Roland, 749

F.2d at 386; Semmes, 429 F.2d at 1197, 1205. Not a single case cited by the Defendants says

that it is okay to deny injunctive relief to prevent the destruction of a business because there is a

fixed-length contract. Moreover, the Sherman Act claim is not limited to nine years.

The Defendants claim that the Plaintiffs can be compensated with money, and that the

Plaintiffs have offered no explanation or analysis to support a contrary finding. [Doc. 27, p. 15.]

But the Defendants disregard the plainly obvious results that the video board will have on the

Plaintiffs’ businesses. As the Defendants’ own executives admitted, “…once we put up the signs

you don’t have a Rooftop Business.” [Doc. 1, ¶ 95.] They also acknowledged, “How hard is it

going to be to sell tickets when you have no glimpse of Wrigley Field.” [Doc. 1, ¶ 96.] This

constitutes irreparable harm that cannot be adequately compensated at law.

The decision cited by the Defendants, Milex Prods., Inc. v. Alra Labs., Inc., 603 N.E.2d

1226 (Ill. App. 1992), merely involved how to calculate money damages, not whether money

damages precluded injunctive relief. Id. at 1236. That case has literally nothing to do with

whether a party is entitled to injunctive relief. Indeed, the word “injunction” does not even

appear in the decision. The same applies for Excelsior Motor Mfg. & Supply Co. v. Sound

Equip., Inc., 73 F.2d 725 (7th Cir. 1934). Marketing Werks also does not support the

Defendants’ adequate remedy argument. The monetary loss in that case was just a small portion

of the plaintiff’s annual revenue. 2013 WL 5609339 at *3. There, the plaintiff was not even

arguing that it would be forced out of business without an injunction. Id. So too, the decision in

Lake in the Hills Aviation Group, Inc. v. Village of Lake in the Hills, 698 N.E.2d 163 (Ill. App.


9

1998), is highly distinguishable. In that case, the court primarily denied injunctive relief to the

plaintiffs because, “…such relief is not warranted where there is no possibility of success on the

merits.” Id. at 169. Moreover, the plaintiffs only argued that it would be “difficult” to find

another place to conduct their business without injunctive relief. Id. at 170. The case does not

discuss total and complete destruction of a business in the context of adequate remedies at law.

Lancaster Found., Inc. v. Skolnick, 1992 WL 211063 (N.D. Ill. 1992), is also not a

“destruction of business” case. The fact that those plaintiffs pled a claim for monetary damages

has no relevance to the Plaintiffs claims for injunctive relief and money damages here. There is

no prohibition on seeking injunctive relief in a complaint to prevent future harm-the destruction

of a business-and at the same time seek money damages for harms that have already occurred

and will possibly occur until trial. Fed. R. Civ. P. 8. There is also no prohibition in seeking

money damages in the event that a jury decides not to award a permanent injunction. Indeed, it

would be incredibly unwise to ask for less given the doctrine of res judicata.

Just because a plaintiff indicates in a complaint what its future damages might be, or just

because future damages might be calculable, does not mean that a defendant has the right to

destroy the plaintiff’s business and just pay him some money instead. Semmes, 429 F.2d at 1197,

1205. And the decision cited by the Defendants, Five Mile Capital Westin N. Shore SPE, LLC v.

Berkadia Comm’l Mortg., LLC, 983 N.E.2d 95 (Ill. App. 2012), suggests no such thing. The

plaintiff in Five Mile argued that it would be “difficult” to calculate damages if a real estate sale

were not enjoined, but not impossible. Id. at 102. Also. That plaintiff did not argue that it would

be driven out of business. The Plaintiffs in this case are not claiming that a damages calculation

on their breach of contract claim is mathematically impossible – they are claiming that they will

be totally destroyed before the case even gets to trial for that calculation to take place, and that


10

they have the right to conduct a business, not live off a damages award. They also claim that

their Sherman Act rights do not expire in nine years.

Matrix Group Ltd., Inc. v. Rawlings Sporting Goods Co., Inc., 378 F.3d 29 (1st Cir.

2004), is also not a destruction-of-business case, and therefore the fact that a jury could calculate

future damages in that case is not applicable here. Likewise, the decisions in Kreg Therapeutics,

Inc. v. VitalGo, Inc., 2014 WL 1227311 (N.D. Ill. Mar. 25, 2014), United Airlines, Inc. v.

Pappas, 809 N.E.2d 735 (Ill. App. 2004), Willow Hill Grain, Inc. v. Property Tax Appeal Bd. of

the State of Illinois, 549 N.E.2d 591 (Ill. App. 1990), and In re Marriage of Perlmutter, 587

N.E.2d 609 (Ill. App. 1992), only involved how to calculate the value of an asset, not whether

that was the plaintiff’s sole asset or whether the loss thereof would drive the plaintiff out of

business. None of these cases are relevant here.

The Defendants quote Bremer Bank, N.A. v. John Hancock Life Ins. Co., stating, “Courts

routinely determine damages in cases similar to this through the use of experts and comparable

sales.” 2006 WL 1205604, *3 (D. Minn. May 2, 2006). But the phrase “cases similar to this”

means cases similar to Bremer, not the instant action. Id. The facts in Bremer, which involved

how to place a value on an aircraft, are dissimilar to the present action. Id. Bremer does not

support destroying a business if the loss can be monetized.

The Defendants also claim that the Agreement itself precludes injunctive relief because it

supposedly contains a formula for calculating damages. [Doc. 27, pp. 22-23.] This argument is

based upon an unintelligent reading of the Agreement. “Damages” are something that a party

gets when someone else breaches an agreement. Sections 6.1 through 6.4 of the Agreement have

nothing whatsoever to do with “damages” because those sections have nothing to do with

“breaches.” Sections 6.1 through 6.4 of the Agreement relate to an expansion of the Wrigley


11

Field bleachers which was expressly permitted by the Agreement. Those sections merely

provide that if the Cubs moved forward with their bleacher expansion (which took place in 2005

and was not a breach of contract), the Cubs would reimburse the Rooftop Businesses for some

portion of the construction costs incurred by the Rooftop Businesses to build higher rooftop

seats, and/or the Cubs would receive a lower royalty rate. [Agreement, Doc. 21 at Exhibit E-1.]

Thus, section 6 of the Agreement is not a damages provision, and it certainly could not be

considered an exclusive remedy or liquidated damages provision for breaches of contract.

Moreover, section 6 of the Agreement only applied to permitted expansions, and not to breaches

of contract such as the installation of barriers in the form of video boards. Therefore, if the

addition of a video board is a breach of contract, then the compensation mechanisms of section 6

would never have applied, whether years ago or now. Moreover, nothing in the contract says

that section 6 would be an exclusive remedy provision for a party’s violation of antitrust laws.

The Defendants’ accounting witness adds nothing. [Doc. 27, Ex. 11.] The accountant

does not discuss valuing a business that is destroyed. The accountant even agrees that his

damages calculations will depend on facts and evidence adduced during the case, but does not

say how the Plaintiffs will fund the litigation if they are denied injunctive relief. The accountant

only focuses on a 1-year and 9-year damages period, based on the contract’s duration, but

provides no explanation how to calculate damages if the Plaintiffs succeed on their Sherman Act

claims and are awarded a permanent injunction or treble damages.

III. Likelihood of Success on the Merits

The Plaintiffs respectfully refer the Court to their Response in Opposition to Defendants’

Motion to Dismiss [Doc. 41] to establish that there is a strong likelihood of success on the merits


12

of their breach of contract and Sherman Act claims, and incorporate same herein by reference.

The Plaintiffs will also submit supporting evidence at an evidentiary hearing on this Motion.

IV. Balance of Hardships

The Defendants’ balance-of-hardships argument is notably weak. It consists of two

components: (i) the Plaintiffs waited too long to sue, and (ii) the Defendants already spent a lot

of money on the project. [Doc. 27, pp. 35-37.] Neither argument holds water because the

Plaintiffs acted as quickly as possible after December 4, 2014, and the Defendants spent most of

their money on a prior version of the project that would not have forced the Plaintiffs to sue.

The argument that the Plaintiffs waited too long to sue is factually untrue. The

Defendants argue that the Plaintiffs “threatened to take legal action” in July, 2013 and again in

May, 2014. In doing so, the Defendants self-servingly ignore that they did not announce their

plan to move the 2,200-square-foot video board directly in front of the Plaintiffs until December

4, 2014. [Doc. 1, ¶ 106.] Before December 4, 2014, the gigantic video board was located up the

street and would have had a smaller impact on the Plaintiffs. [Doc. 21, Exs. A-10-1 and A-10-2.]

It was the Defendants that decided to move the video board after all their planning and expenses,

so that their newly-acquired buildings would not be blocked. This forced the Plaintiffs to sue.

Furthermore, the Defendants did not get permits for the sign until January 27, 2015. Their plans

changed so often, it was unclear whether the Defendants would really put the sign up until then.

The Defendants also argue that they spent nearly $2 million designing, constructing and

purchasing the video board. Once again, however, that money was already spent before the

Defendants decided to move the video board in front of the Plaintiffs’ buildings. There is no

evidence cited by the Defendants suggesting that they spent $2 million dollars on the video board

after December 4, 2014. There is also no evidence cited by the Defendants to suggest that they


13

could not simply slide the video board back to its original location – a very reasonable solution

that the Defendants choose not to undertake.

The Defendants also say that they have a contract with Budweiser which generates

income for a sign on top of the video board. However, the Defendants do not identify how much

Budweiser is paying for that sign, whether Budweiser agreed to pay for that sign before its

location was moved on December 4, 2014, or whether Budweiser had previously agreed to pay

the same amount to have a sign in the prior location. The Defendants have not presented any

hard evidence with respect to the supposed harm they are facing.

Enverve Inc. v. Unger Meat Co., 779 F. Supp. 2d 840 (N.D. Ill. 2011), does not help the

Defendants. In that case, the defendant tendered evidence that it would suffer $174,581.72 in

economic harm if an injunction was issued. Id. at 845. On the other hand, there was minimal or

no indicia that the plaintiff would suffer any irreparable harm if the injunction was denied. Id.

Furthermore, the court only found a “modest” likelihood of the plaintiff succeeding on the merits

in that case. Id. Applying the sliding scale method, injunctive relief was not warranted. Id.

MacDonald v. Chicago Park Dist., 132 F.3d 355 (7th Cir. 1998), does not stand for the

proposition urged by the Defendants that an injunction should be denied if issuing it would cost a

defendant a significant amount of money. Quite the opposite, that court merely balanced the

harms at issue in that case. Id. at 360. The plaintiff wanted to stop the park district from

requiring permits and charging fees for free speech rallies until the case concluded. Id. This

could have meant thousands of applications not being filed, thousands of permit fees not being

collected, major scheduling problems, and danger to health or safety of park patrons. Id. On the

other side of the scale, the park district was not preventing the plaintiff from having his rally at


14

all, even for free. Id. Thus, the harm to the defendant and the public was great – the harm to the

plaintiff was minimal or non-existent. Id.

V. The Public Interest

The Defendants also assert that the public will be harmed if a preliminary injunction is

granted. [Doc. 27, pp. 37-38.] The Defendants argue that public support for the renovation of

Wrigley is strong. The Defendants also argue that City Hall, Contractors and Chambers of

Commerce favor the renovations at Wrigley Field. But this argument ignores the narrow scope

of the Plaintiffs’ request. The Plaintiffs are not trying to stop the renovation of Wrigley Field;

they are not trying to stop construction of the outfield walls; they are not trying to stop any

expansion whatsoever. The only thing the Plaintiffs are trying to stop is the installation of a

single video board and any signage on top of it. This is an extremely narrow, focused and

carefully-tailored request. The Defendants’ supposed public interest facts are unavailing.

The Defendants also offer no explanation how the public would be harmed if a

Budweiser advertisement does not grace the beautiful, historic Wrigley Field. The Defendants

offer no explanation how the public would be harmed if the messages intended for the video

board were displayed on the jumbotron, or on some other signs placed elsewhere in the park.

The Defendants also do not explain how the public scraped by for 100 years without the video

board or Budweiser sign, but now suddenly “need” it so desperately that the destruction of four

businesses, dozens of jobs, and tens of millions in property values, is acceptable.

The Defendants also fail to circumvent that there is a strong public interest in enforcing

the Sherman Act. F.T.C. v. Whole Foods Mkt., 548 F.3d 1028, 1035 (D.D.C. 2008); Jackson v.

N.F.L., 802 F. Supp. 226 (D. Minn. 1992). The Defendants also do not respond to the Plaintiffs’

argument that the public will be harmed if injunctive relief is not granted, because there will be


15

less competition, the Defendants ultimately want to control and raise prices, reduce competition,

and compete by overtaking or destroying, not by offering a superior product at a better price.

These are obvious, recognized forms of public harm, which serve as the cornerstone of the

Sherman Act.

VII. Conclusion

Without an injunction, the Plaintiffs will become insolvent and will be destroyed almost

immediately, and certainly long before this case goes to trial. For all of the reasons set forth

above, in the Motion for Temporary Restraining Order and Preliminary Injunction, and adduced

at the forthcoming evidentiary hearing, a preliminary injunction is necessary, just and

appropriate.

WHEREFORE, the plaintiffs respectfully request that this Honorable Court enter a

Preliminary Injunction requiring that the defendants, Chicago Baseball Holdings, LLC, Chicago

Cubs Baseball Club, LLC, Wrigley Field Holdings, LLC and Thomas S. Ricketts (collectively,

“Defendants”), immediately discontinue the installation of “jumbotrons,” “video boards,”

billboards, advertisements, and any other type of signage in front of Plaintiffs’ properties located

across from Wrigley Field, which signage will obstruct Plaintiffs’ views into Wrigley Field, and

grant any additional relief deemed just and appropriate.

Thomas M. Lombardo (6279247) Respectfully Submitted, Abraham Brustein (327662) Di Monte & Lizak, LLC Right Field Rooftops, LLC, d/b/a Skybox on 216 Higgins Road Sheffield, Right Field Properties, LLC, 3633 Park Ridge, IL 60068 Rooftop Management, LLC, d/b/a Lakeview 847-698-9600 Baseball Club, and Rooftop Acquisition, [email protected] LLC [email protected]

/s/ Thomas M. Lombardo One of their Attorneys


mailto:[email protected]

mailto:[email protected]

rooftops' preliminary injunction reply

Documents