It’s a swing and a miss for rooftop club owners

Rooftop club owners struck out again Thursday in a battle over a Wrigley Field video board that blocks their customers’ view of Chicago Cubs game.

In a written opinion, U.S. District Judge Virginia M. Kendall declined to reverse a decision she made a year ago to throw out a lawsuit accusing the Cubs of contract violations and anti-competitive behavior.

Kendall also denied a motion to allow the plaintiffs in the suit — the owners of Skybox on Sheffield and Lakeview Baseball Club — to file an amended complaint.

The rooftops referenced evidence they maintain is “newly discovered” — but it was available before Kendall dismissed their suit in September 2015, she wrote.

That evidence, Kendall wrote, does not help the rooftops anyway.

She did not make factual or legal errors in holding last year that the rooftops cannot support their antitrust and breach-of-contract claims against the Cubs, Kendall wrote.

The lead attorney for the rooftops, James R. Figliulo of Figliulo & Silverman P.C., said his clients will appeal both Kendall’s original decision and her denial of their motions that she amend the decision and allow them to file a new suit.

Among the issues the rooftops will raise before the 7th U.S. Circuit Court of Appeals is Kendall’s conclusion that the Cubs did not violate a 2004 agreement by putting up the right-field scoreboard, Figliulo said.

Like other rooftops, Skybox and Lakeview offer views of Cubs games without entering Wrigley Field.

Under the agreement, the rooftops are required to pay the Cubs 17 percent of their profits.

The Cubs, in turn, are prohibited from obstructing the view of the ballpark unless such an obstruction is approved by a government authority.

The Cubs got permission from the city council to put up the right-field board as part of a $375 million overhaul of Wrigley Field.

Figliulo contended Kendall got it wrong when she concluded the scoreboard constitutes an expansion rather than an obstruction.

“At the very least, it’s an ambiguity that needs to be resolved by a trial, not by a motion to dismiss,” he said.

He said the rooftops also will challenge Kendall’s rejection of their allegation that the Ricketts family is violating antitrust law.

The family, which bought the Cubs in 2009, now is using entities it controls to buy rooftop businesses near the ballpark in order to monopolize that market, Figliulo contended.

The rooftops are going to swing for the fences with the third issue they intend to raise before the 7th Circuit.

Figliulo said his clients will ask the court to strike down a 94-year-old legal precedent exempting Major League Baseball from antitrust law.

In Federal Baseball Club of Baltimore v. National League of Professional Baseball Clubs, 259 U.S. 200 (1922), the U.S. Supreme Court held the Sherman Act does not apply to the “business” of “giving exhibitions of base ball.”

Figliulo was retained by the rooftops after Kendall dismissed their suit last year.

The lead attorney for the Cubs, Andrew A. Kassof of Kirkland & Ellis LLP, declined to comment.

In Thursday’s opinion, Kendall conceded Federal Rule of Civil Procedure 59(e) allows judges to alter their rulings in some circumstances.

Judges may make changes if they “committed a manifest error of law or fact” or if “newly discovered evidence precluded entry of judgment,” Kendall wrote, quoting Blue v. Hartford Life & Accident Insurance Co., 698 F.3d 587 (7th Cir. 2012).

However, she wrote, the rooftops’ new evidence is not “newly discovered.”

An internet search would have shown the rooftops that six other such properties near the ballpark are not owned by the Cubs, Kendall wrote.

Public records, she wrote, show that the properties were acquired by holding companies that serve as investment vehicles for the Ricketts family.

And Kendall concluded it would be “futile” for the rooftops to file a new complaint.

It doesn’t matter whether the Cubs themselves or separate business entities acquired the other rooftop businesses, Kendall wrote.

The “proper inquiry” into whether the baseball exemption applies, she wrote, “is the type of conduct at issue.”

“Specifically, the issue is whether the conduct is the business of baseball, regardless of whether that business is conducted by a team or owner or separate corporation,” Kendall wrote.

The case is Right Field Rooftops LLC, et al. v. Chicago Baseball Holdings LLC, et al., No. 15 C 551.