In the News The American Lawyer

Going to Bat for the Cubs

The Chicago Cubs know all about the weight of history. They spent the season solidly atop the standings, and with Kris Bryant an MVP frontrunner and Kyle Hendricks a Cy Young contender, they're going into the playoffs favored to win the World Series. But the fact remains: The Cubs haven't won it all in 107 years.

For a lesson in how to deal with the burden of the past, the Cubs could do worse than to look to its own in-house legal department and its lawyers at Kirkland & Ellis and DLA Piper. The renovation and expansion of historic Wrigley Field has been a key element of the Cubs' comeback strategy, but the entire project was threatened by the team's legal history and the uniqueness of its 102-year-old ballpark, which in addition to being designated a city landmark is located in a residential neighborhood.

Fortunately for the Cubs, its legal team is nothing like the Lovable Losers of yesteryear. Its lawyers are close to a sweep of wins at City Hall, a local landmark commission and federal court. Wrigley has already undergone or received approval for most of the planned changes, including the installation of two giant, controversial video screens in the outfield. In September, a federal judge in Chicago again ruled in the team's favor after owners of buildings near Wrigley, who sell tickets for rooftop views into the stadium, sought to revive a suit over the video boards that had been dismissed in 2015.

The Cubs' grand plan was put in place shortly after the Ricketts family in 2009 bought the Cubs from the Tribune Co. for a reported $900 million. The family says that the investments were necessary to keep Wrigley safe and to add advertising revenue to support a competitive team on the field.

"Everything was so well-thought-out in advance," said one source who is familiar with the matter. "That was the beauty of it, just watching it get executed."

Much of the difficulty with expanding Wrigley Field resulted from a copyright infringement lawsuit that the team's previous owners filed in 2002 against the rooftop businesses across the street. A unique aspect of Wrigley Field, the rooftop businesses have evolved over the years from a few fans standing atop the buildings into multimillion-dollar businesses. The homes have been turned into bars, and the rooftops now have stands that seat more than 100 partygoers, enticed by the all-you-can-eat-and-drink tickets.

The 2002 lawsuit in federal court in Chicago resulted in a settlement in 2004, with the Cubs agreeing to split revenue with the rooftops. The club would get 17 percent of the rooftop revenue through 2023 and would no longer attempt to block their views, according to a contract made public in the current litigation.

For a while, this contract hampered the team's ability to expand the Friendly Confines—a historical albatross akin to the Cubs' 1969 September collapse, when they lost 17 of their final 25 games to miss a National League Pennant.

But the legal team at Kirkland, which represented the Cubs in a lawsuit filed in federal district court in Chicago in 2014 by a group of rooftop owners, has so far proved that the contract isn't as limiting as once thought.

The club turned to litigation partner Andrew Kassof, who had just successfully defended NBA player and coach Derek Fisher in a defamation and breach of contract lawsuit brought by former NBA players association executive director Billy Hunter. Kirkland also had a personal connection with the Cubs: General counsel Lydia Wahlke is a former Kirkland associate.

Kassof, his partner Daniel Laytin and associate Diana Watral zeroed in on a single sentence in the contract to convince U.S. District Judge Virginia Kendall that the Cubs have the right to block some of the rooftop views with new video boards. (An attorney for the lone remaining rooftop owner in the case told sibling publication The Am Law Daily in September that his client would appeal the ruling to the U.S. Court of Appeals for the Seventh Circuit.)

In a section of the contract that otherwise spells out how the Cubs must repay the rooftop owners if they impinge their view of the field, the sentence reads: "Any expansion of Wrigley Field approved by governmental authorities shall not be a violation of this agreement." The latest dispute hinged on the definition of "expansion."

The rooftop owner argued for a less expansive definition of the term. "Judge, putting a sign on top of an expansion doesn't make that an expansion. It's kind of an absurd reading of the contract," Thomas Lombardo, a DiMonte & Lizak partner representing the rooftop owner, argued in an unsuccessful February 2015 hearing seeking an emergency injunction to stop the Cubs construction before Opening Day last year.

"We have structurally connected steel columns that connect and tie the bleacher expansion in with the video board expansion so they are integral together," Kirkland's Kassof replied, according to a transcript. "They were designed together. They were approved together."

Kendall agreed. In September 2015 she dismissed the rooftop owner's case. "It is undisputed that the government approved its construction," she wrote.

For their zoning and landmark work, the Cubs hired high-powered DLA Piper partner David Reifman, no stranger to big-name clients. Locally, he has represented Wal-Mart Inc. and Whole Foods Market Inc., and he helped Boeing Co. win millions in tax incentives when they moved their headquarters to the Windy City in 2001. Since his work with the Cubs, he has been appointed by Mayor Rahm Emanuel to head Chicago's Department of Planning and Development.

The team originally faced heavy resistance from local alderman Tom Tunney, who argued that the new signs and increased number of night games would be a nuisance for nearby residents. Tunney largely acquiesced after the team struck a deal in 2013 with Emanuel's office.

The club still had to gain approval from city offices such as the Chicago Plan Commission, the office of Planning and Development and the Commission on Chicago Landmarks. Chief legal officer Michael Lufrano, Reif-?man and others acted as liaisons between the ball club, the public and the commissioners, relaying the team's plans to the commissions as they changed after negotiations with the rooftop owners and the city, and facing dissatisfied rooftop owners at public meetings.

"Tourists from all over the world come to the rooftops because this is a special commodity," rooftop owner Marc Hamid said at a landmark commission meeting in July 2013, according to a transcript. "You're poised to destroy that experience today." Unconvinced, the commission voted in favor of the project. But just like the ball club's quest for a World Series, the legal team's work is not done. The latest dispute centers on when the team will be permitted to sell alcohol in a new outdoor plaza adjacent to Wrigley Field. The club says that a city plan announced by Tunney and Emanuel that would limit alcohol sales to days of events at the park could breach the 2013 agreement that the team struck with the city allowing the construction to start.

A club spokesman, Julian Green, said in an email that the plan "raises legal questions."