good morning ladies and gentlemen our first case for argument this morning is right field rooftops against the chicago cubs mr filial made please the court your honor this is an appeal from granting  spend some type talking about count eight which is the breach of contract claim about the sign that was erected to obstruct the views and we've put into the record in their reply brief correctly the sign was record of human approval as if it had to be yes anything would have had to bend with respect to the to the wrigley field because at the time of the contract was entered into the preliminary designation pub wrigley field in its protected features was already made and bet meant that before you could do anything that would be substantial enough to whack the views from any of these rooftops you have to get governmental proof and that i think is an important consideration when we get to the issue of whether there was a breach here and whether the district court the cubs interpretation is the only reasonable interpretation of the agreement so we we have this side that black in our views which we'll act ledge was directly placed in front of our rooftop to obstruct our views and the agreement just so we can put it in perspective section six point six of the contract states in the first sentence any windscreen or any barrier obstructed to be erected to obstruct the views of the plaintiff through taps is an expansion approved by the government that first sentence means nothing because you hit the hip governmental approval anyway so if you want to if you're going to interpret this contract as we we should under illinois law ought to give meaning to every provision we need to give meaning to that first sentence and that is a perfectly reasonable way to do it to do that in that's our interpretation when for example the expansions the only expansions of wrigley field that are discussed in this agreement are in section six point one three six point four which talks about expansion of the wrigley field those are the expansions that are the subject of that second set if any of those expansions are approved by the government then also let me tell you my problem with that there are several places in the contract that talk about things like bleacher expansion right where bleacher is used as an adjective modifying expansion and there are several places in the contract were just talks about expan that's sounds like expansion is a broader term than bleach or expenditure otherwise why do you need the term leecher to modify it in some places i think of the primary recent leecher was used to modify peacher expansions was because disagreement and then as what so sanjay but again that sounds like you're now agreeing that bleach or expansion and expansion are different things that have different consequences why aren't they just different things they may be different things your honor but in the context of this agreement i think it means police are seeing expansions now if that's certainly a reasonable interpretation of the agreement because any expansion that word and it's this court has found in the spring court has found and the third circuit is found any expansion needs to be understood in the context of the remit if the it's meaning depends and context it could be every it can be one can be sol it can be a random selection of one of many and that's what the case law says including the seventh circuit opinion the supreme court nixon the some sort of business first star and the third circuit opinion a commonwealth of pennsylvania in fact in that that because they didn't use such and they had described other things in the cat trick that it didn't mean one of those or it didn't mean such any such and the court rejected that argument and a firm summary judgment saying that it was clear from the context that any in that case meant one thing that was the context of the agreement but our our position is that the cubs interpretation is simply leads to own reasonable result one that is not that eliminates the meaning of section one and makes the other provisions of the c why contracts need to make sense x hoaxed people who sign contracts are allocating risks and one can understand this contract as allocating the risk of particular know a way that deals with that risk by asking for a city of proof if there's no city approval something doesn't happen if there is city approval it happens your honor if that were the case there would not  a statement a provision that says no the cubs shall not erect any windscreen or other barrier to obstruct the views from the rooftops because you just let it be just say this just drives me back to my initial question on your view of expansion windscreen would never be an expansion and so it would never be allowed when you make an exception for a windscreen you're implying that it would indeed be an expansion but we've cart that out of the code tract you see my problem i see your problem your honor but i don't see windscreen it doesn't have to be absolutely not an expansion but i think a reasonable interpretation would be if it erected to obstruct the use of the rooftops that's a breach of the remit whether there is governmental approval or not and i escaped asking you look at after the fact at the time of this negotiation you can see in this agreement how the parties dealt with allocating that risk for anything that would have blocked their views this deal was we will pay you seventeen percent of our gross revenues for twenty years every year in exchange for letting us speak let us have the views let us operate our businesses that's what the in the agreement that what they said when they said you shall not a wrecked any barrier to obstruct the view is that that's what they meant and we alleged in this complaint that when they announced their decision to move hearts i think you would be well advised to usurer time on some other issue given the supreme court's holdings in federal baseball and later cases that's you've preserved your position to ask the supreme court to overrule that centuries long series of cases but we can't do that i'm not if going to court to do it in this argument what i'm saying is that that business of baseball tenth and doesn't apply to this case arises because a baseball team erected a scoreboard inside its own stadium but that's not the business of baseball it's very difficult to understand what idiots i suggest you move along you know you can  but i'm wondering friendly advice your honor i i understand respect your honour's suggestion i will go back to the contract claim but i believe that the cases we cited in our brief about the business of baseball so that the for the last fifty years there's never been a case in any circuit or in any in the supreme court which applied the business of baseball exemption to  is the conduct misleading is this are the statements misleading and in this case we not only hit misleading statements because we certainly were not stealing anybody's views we were paying seventeen percent what i understand that you're probably was a hyperbolic part of it but it was misleading it was seriously misleading because there's no reference to the rooftops are legitimate business and when you look at that in the context of the marketing jointly promote the businesses the rooftops clearly they weren't the cops were prohibited from insulting and demeaning and misleading the public about what business of the rooftops  were the if i could go back to the the contract claim it so in effect a i see that i'm into my rebuttal time so i'll sum up i think are in a competitive conduct arguments are actually very well set forth and in the hecht case the fishman case in the even in the dissent in the fishman case and that there was a refusal to deny us rooftops efforts to find in to support the breach of contract in the cubs government approval of a government approved expansion of wrigley field the second sentence of section six point six makes clear that quote any expansion of wrigley field approved by government authorities shall not be a violation of this agreement including the section the first section sentence of section six point six imposes a contractual limit on the cubs ability to erect windscreens or other barriers to obstruct the views of the rooftops that's the second sentence is clarification the government approved expansions do not violate the agreement including this section makes crystal clear that any expansion means any expansion including the erection of a view blocking barrier if it's government approved appellants effort to limit any expansion to any expansion of bleacher seating is simply foreclosed by the unambiguous language of the contract alluded to judge mr brooke there are multiple references in the contract in section six point one three six point four that talked about expansion of the bleacher seating at wrigley field those same provisions then in that same provision referring back talk about such expansion so there's multiple textual indicators that the parties knew how to limit the universe to expansions that expanded pleats or see they then have two other provisions and six point six is the one that they allege violate but i think six point five is also relevant here that use the broader term any expansion and six point five essentially preserves the ability of the parties ability to with respect to any expansion to fight it out before the scribus preserve their right to get an expansion and the rooftops reserve their right to resist the expansion in front of the government authorities so i actually think that you don't have to go beyond section six point six to reject a claim you know all of their efforts to try to get into the greater includes the lesser and all of that is really beside the point because this contract tells you exactly how to make sense of the two sentences of section six point six together presumptively says that the cubs contractually agree that they can't engage in windscreens or other barriers and then section six point six clearly creates an exception to that for government improved government approved expansions and then to avoid all that on the subject it says including the section and so that language including the section makes crystal clear that the universe of government approved expansions can include the windscreens or other barriers that are referred to in the first sentence of the section and i really do think that if you read that in context it eliminates all doubt but if you want to look more contextually i actually think the can text you clues reinforce because section six point one three six point four make crystal clear that the parties in negotiating this contract knew how to talk about expansions of the bleacher seating at wrigley field as a subset of the universe of all expansions and they knew how to talk about a broader universe of expansions and they did so in section six points five and six point six and those two sections work together quite compatibly section six point five  rights to duke it out in front of the city authorities with respect to any expansion and section six point six saying the consequences if the cubs get an expansion approved then it doesn't violate the agreement including that section so i think that all fits together rather nicely the only argument that the other side suggests is that will you know why would we have agreed to an agreement like this as judge easterbrook alluded to you know i think this is a perfectly rational way to allocate risk and i think if you look in text really even the point which we're limited to of course here makes clear that a bleacher expansion was on the table as a as a real possibility at the time the parties were negotiating this it seems quite common sense to deal with the problem at hand in specific terms and it doesn't seem irrational especially if perhaps one thinks that you know they have a reasonable shot of persuading the city authorities not to expand a historic landmark like wrigley field to leave the rest of it to the government approval process come what may and i think that's the way to make sense of this and i think the district court correctly dismissed that breach of contract claim as to the antitrust claims i think i can hardly add to what judge easterbrook said suggesting that this case is simply controlled by federal baseball tools and and fled the coon it's a remarkable context to be in a situation where you're not only asked to overrule the supreme court case but ask to overrule the supreme court case that the supreme court itself has twice refused to overrule though it wasn't long ago that the supreme court overruled a hundred year old precedent in every trust sure and that's that's you us as an inferior court i would never do that your honor but there is that reference in the constitution you know i but i do think even in the dr miles context i mean you don't have the kind of remarkable confluence of events that the supreme court has in itself considered this on multiple occasions and then congress comes in with the curt flood act and addresses one single aspect of this with a rifle shot and leaves the rest of it essentially as is so i won't belabor that point i do think that you know if the court were inclined it could follow the district court's path and say that there's an alternative reason to read check the end i trust claim which is that you can't define a market as the cubs own brand of baseball i think that's that sort of deficient on its face and that would be an alternative ground the only thing issues that are left on the table and i don't need to take the panel's time if unnecessarily but on the disparagement claim which you asked about your honor i do think there that you know that this is a disparagement clause that's the way it's referred to in the complaint itself and i do think the illinois law in the pekin case in the lexmark case it's pretty clear that you have to have an untrue or misleading statement in order to violate even  contractual disparagement provision i do not think that the ricketts statement at the cubs convention read in context is satisfies that standard i would you know i would only sort of emphasize that you really actually have to read the entire the entire statement and it's you know it's it is in the complaint at short appendix page seventeen and eighteen you know it's interesting because the last couple of lines of this i think actually shed some li and you close the shade and then the city makes you open them that's basically what happened so there's a key aspect of why this is misleading is that mr ricketts didn't go out of its way and say well and at this point thanks to the agreement they're actually paying us  seventeen percent royalty but i think in context this is really kind of explaining more of the historical context of this and i do think what he said you know essentially referring to his well we tried to put up the windscreens back in two thousand and one and we were basically we did that without government approval government didn't expressly tell us to take them down but there was certainly pressure to them down and that's sort of what happened so it's complex i think it's actually more of a historical statement but i do think there are real problems even under a contractual claim of making analogies actionable in this way and so i do think that you really do and i think illinois last consistent with this you have to have something more concrete it has to be a statement that is of its nature the kind that could be untrue i mean you know if mr r said that the rooftops are paying us anything to watch our games that might be a discouragement claim but this kind of analogy i don't think gets the job done and i would only say on the amendment issue that i think the district court acted well essentially in ninety nine percent of the applications covered by the baseball exemption and of course it would only broaden the market at the expense of making it clear that the cubs have no market power in the broader market for entertainment services it is true that you can only see a cubs game at wrigley field it is not true that you can only see pearl jam at wrigley field so i think that there are real problems with even their amended complaint as well if the if the court has no further questions thank two thousand and four when the parties entered into this settlement agreement they used the word barrier and section six point six as a prohibition the cubs shell not direct any barrier to obstruct the views they didn't say as long as you get unless you get governmental approval they didn't combine debt with the second sentence in section six point six we need to give meaning to that they used bare you're in one sen other they are not the same thing they need to be accorded different meanings we provided a reasonable interpretation of this agreement that reconciles everything it says any expansion relating to the wrigley field reach of seeding that's if it's approved by the government that's not a violation of the security including the section the section being section six point six that would otherwise prohibit a barrier that obstruct views in the cups interpretation they the parties would have agreed to some relief if there was a expansion of the bleacher scene but no relief if they throw up a sign that it is not reasonable that does not reconcile itself in article seven they require the cubs to promote the business of the rooftops being phone numbers and stuff in a circumstance where they have to promote them go into to a rooftop where there's a sign directly in front of you but the proof that prevents you from from looking at the agreement in this was done if we allege with th also an attempt to monopolize i would ask the court to consider that the cases like henderson seem look twin cities all of which relate to contractual relations stand we've offered a reasonable interpretation the cubs offer an interpretation i don't think it's reasonable that eliminates the meaning of the first sentence but even if it is send a bag let us prove our interpretation of the other and allow us to prove the case that this sign that's right the front of our booth taps is a barrier you directed to struck views from the rooftops