Metaphor likening plaintiff to peeping Tom is opinion, not fact

Right Field Rooftops, LLC v. Chicago Cubs Baseball Club, LLC, --- F.Supp.3d ----, 2015 WL 5731736, No. 15 C 551 (N.D. Ill. Sept. 30, 2015)

 

The Rooftops allowed patrons to view live Cubs games from their location near Wrigley Field, until the Cubs built a video board that blocked the view from the Rooftops.  Plaintiffs alleged that the Cubs engaged in anti-competitive behavior and false advertising, and also breached a contract that provided that the Rooftops would give the Cubs 17% of their profits in exchange for the Cubs' promise to not block the view of Wrigley Field from the Rooftops.  The court dismissed the complaint in its entirety.

 

Antitrust claims failed not just because of the baseball exemption but also because there was no plausible relevant market. Contract claims failed because the contract didn’t bar expansions of the facilities approved by the government, which the video board was.

 

The Lanham Act and state law deceptive trade practices claims came from a statement by a Cubs representative in response to a question about the construction at Wrigley Field:

 

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.

 

The Rooftops alleged that this was a defamatory statement alleging criminality on the part of the Rooftops.  Whether an observer could plausibly perceive a factual statement depends on “(1) whether the statement has a precise and readily understood meaning; (2) whether the statement is verifiable; and (3) whether the statement’s literary or social context signals that it has factual content.”  Here, no reasonable person could believe that the speaker was stating a fact, rather than an opinion through “a readily understandable metaphor” that described his feelings.  “There is no objective way to verify his statement because there is no way to fact check whether the Rooftops are similar to those who charge admission to watch their neighbor’s television.”  [There was no mention of charging admission in the analogy, but ok.] This was “hardly an accusation of criminality,” especially given the decades-old battle between the parties about whether the Rooftops can let patrons watch the Cubs game for free. No reasonable person could understand the statement as an accusation of an indictable offense or as “anything other than the frustrations of an individual who has litigated the same issue in different fora and in various forms for years.”