Oct. 29--The rooftop businesses that struck out in court are asking for an extra inning with the Chicago Cubs.
Skybox on Sheffield and Lakeview Baseball Club filed court papers Wednesday, asking U.S. District Court Judge Virginia Kendall to reconsider her decision to dismiss their lawsuit against the team and asked permission to file an amended complaint.
The two businesses -- owned by commodities trader Edward McCarthy -- requested Kendall to allow them to amend claims related to antitrust violations by the team in its pursuit of acquiring rooftop businesses. In throwing out the lawsuit last month, Kendall had cited Major League Baseball's antitrust exemption, long upheld by the Supreme Court, and that the Cubs cannot be limited in how they distribute their product.
McCarthy's businesses -- which also filed for new counsel -- hope to argue that the exemption would not apply because the six rooftop businesses acquired by the Ricketts family this year aren't directly owned by the Cubs. They wrote they want "to clarify the nature of the antitrust theory and the relevant market, as well as to include in the record the correct corporate identity of the party who has been seeking to monopolize that market."
"The amendments will clarify that ... the market alleged is not based on the market for Chicago Cubs baseball tickets, but is a market for views into an arena from outside the arena. For the same reason, the Rooftop Businesses are not selling a 'brand' but are selling views, food and drink, and an entertainment experience, involving not only Cubs games, but also other entertainments."
The two rooftops cite a multilayered ownership structure of the rooftops purchased by the Ricketts family and their relationships to the Cubs. They said that such information was not available when the lawsuit was filed in January, and point out how Cubs attorneys withheld it during legal proceedings.
This year the Ricketts family acquired six rooftop businesses as part of a campaign by Tom Ricketts to gain further control of the neighborhood streets surrounding the historic ballpark. A Ricketts-controlled entity has also filed a lawsuit against a rooftop business in which it is an investor in order to gain full ownership.
McCarthy's businesses want to add as a defendant Northside Entertainment Holdings, an entity in which the Ricketts family are indirect investors and which indirectly owns the rooftops acquired by the family.
The filings Wednesday are not seeking to address breach of contract, which was among the nine counts Kendall dismissed. Among their allegations were that the team had violated its decade-old revenue-sharing agreement and that the 2,250-square-foot right-field video board would block their views into the historic stadium and destroy their businesses. Kendall disagreed and sided with the Cubs.
The long-running battle has centered on the interpretation of the 2004 contract in which the Cubs receive 17 percent of the rooftops' annual revenue in exchange for unblocked views into the ballpark.
The new attorneys for McCarthy's rooftops, James R. Figliulo and Stephanie D. Jones, declined to comment, citing the litigation.
A Cubs spokesman also declined to comment.
jahopkins@tribupub.com
