The Chicago Cubs have asked an Illinois federal court to refuse a preliminary injunction blocking construction of new Wrigley Field signs that may obstruct rooftop business views, alleging that the opposing side has not proved it will be irreparably harmed and that even if the businesses win, the matter can be remedied with cash.
In a Friday filing laying out its opposition to the preliminary injunction request, the Cubs ownership argued that the rooftop businesses have not shown that they will be forced to close and that there will be a permanent collapse of their businesses. Further, the baseball team group, which maintains that it has not broken a revenue-sharing deal with the rooftop businesses by installing the signs, contends that even if it loses the suit, monetary damages can be awarded at the end of trial.
For example, the Cubs contend that damages could be calculated either by considering plaintiff's sales during the first 11 years of the deal and then determining damages for the remaining nine years or by computing the fair market value of the plaintiff's properties and businesses.
“The point is simply that plaintiffs’ contract ends in 2023 — and it is not difficult to calculate damages for any period between now and then,” the Cubs said noting that there could be other possible ways to calculate damages.
Backing up its argument that the preliminary injunction is unnecessary as there will not be irreparable harm before the case is resolved, the Cubs ownership also argued that the rooftop businesses have not provided adequate information showing that the properties will be unable to make mortgage payments, according to the filing.
“Plaintiffs offer only limited and deficient information for the two rooftop businesses, but provide nothing at all for the two rooftop properties. This failure is critical: the actual mortgage borrowers apparently are the rooftop properties and other entities owned by Edward McCarthy (the wealthy owner of all plaintiffs) — not the rooftop businesses. Plaintiffs have put forward not a shred of evidence the correct entities will miss a single payment, much less have their properties repossessed,” the Cubs argues.
A preliminary injunction hearing is penciled in for March 23. The request comes after the plaintiffs lost a temporary restraining order bid to halt construction of the signs in February, after the court ruled that the plaintiffs hadn’t shown that allowing the project to proceed would destroy their businesses.
The rooftop clubs sued the team and its owners, the Ricketts family, in January, alleging the new signs breach a 20-year contract that guaranteed them unobstructed views into Wrigley Field in return for handing over a 17 percent cut of their revenues to the Cubs.
However, the Cubs contend that the deal offers no such guarantee and that the contract protects the team owners' rights to expand the property as necessary. The Cubs ownership contends that a contract provision being pointed by the rooftop owners was only meant to bar temporary obstructions like the kind that the team had attempted to use to willfully block the businesses' views before the revenue-sharing deal was struck, according to court documents.
“Indeed, the agreement contains only one prohibition, and even that is limited: defendants cannot erect 'windscreens or other barriers to obstruct the views of the rooftops.' That is, defendants cannot erect the windscreens, balloons, inflatable tubes or similar items they previously put up or openly threatened to install to block the rooftops’ views prior to 2004. Defendants can otherwise use their property however they want,” the Cubs said.
The rooftop owners, however, disagree with the reading of this provision and their suit also accuses the Cubs of trying to create a monopoly in violation of the Sherman Act by strategically placing the signs to obstruct the views of rooftop clubs who refused to sell their businesses to the team.
Earlier this month, a pair of the businesses urged the court to reject the Cubs’ bid to toss their suit, saying baseball’s longstanding exemption from federal antitrust law doesn’t apply in the case.
The exemption doesn’t shield individual team franchises and only applies to matters directly affecting the game on the field, according to the plaintiffs, who operate Skybox on Sheffield and Lakeview Baseball Club, which offer fans views of the stadium from neighboring rooftops.
U.S. District Judge Virginia M. Kendall has indicated that she want to resolve the dispute before the Cubs take the field on April 5.
The plaintiffs are represented by Thomas M. Lombardo and Abraham E. Brustein of Di Monte & Lizak LLC.
The Chicago Cubs are represented by Andrew Kassof, Daniel E. Laytin and Diana M. Watral of Kirkland & Ellis LLP.
The case is Right Field Rooftops LLC et al. v. Chicago Baseball Holdings LLC, case number 1:15-cv-00551, in the U.S. District Court for the Northern District of Illinois.
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