In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 19-2904

LEFT FIELD MEDIA LLC,

Plaintiff-Appellant,

v.

CITY OF CHICAGO, ILLINOIS,

Defendant-Appellee.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 15 C 3115 — Jorge L. Alonso, Judge.

____________________

SUBMITTED MAY 6, 2020* — DECIDED MAY 15, 2020

____________________

Before EASTERBROOK, HAMILTON, and BRENNAN, Circuit 

Judges.

EASTERBROOK, Circuit Judge. Four years ago we held that 

Chicago is entitled to limit sales on the streets adjacent to 

Wrigley Field, home of the Chicago Cubs. Left Field Media 

LLC v. Chicago, 822 F.3d 988 (7th Cir. 2016). But we remand-

* The parties’ joint motion to waive oral argument is granted.
2 No. 19-2904

ed for further proceedings on a magazine seller’s contention 

that an ordinance requiring all peddlers to be licensed is invalid because of an exception for newspapers. Id. at 991–94.

Requiring speakers to be licensed is problematic, doubly 

so when government distinguishes among kinds of speech. 

See, e.g., Reed v. Gilbert, 135 S. Ct. 2218 (2015); Watchtower Bible & Tract Society of New York, Inc. v. StraLon, 536 U.S. 150 

(2002). Our opinion pointed out, however, that Left Field 

Media, which publishes the magazine Chicago Baseball, had 

never applied for a license, for itself or any of its peddlers, 

and that none of the peddlers had ever been ticketed for not 

having a license. Perhaps Chicago has always treated Chicago 

Baseball as a newspaper. It was therefore not clear that the 

case presented a justiciable controversy.

On remand Left Field Media asked the district judge to 

enjoin operation of the peddler’s-license requirement. Before 

the judge acted, however, Chicago amended its ordinance to 

eliminate the distinction of which Left Field Media complains. The amended ordinance, which took effect on November 1, 2016, provides:

It shall be unlawful for any person to engage in the business of a 

peddler without first having obtained a street peddler license 

under this chapter. Provided, however, a street peddler license is 

not required for selling, offering or exposing for sale, or soliciting any person to purchase, only newspapers, periodicals, pamphlets, or other similar wriien materials on the public way.

Chicago Municipal Code §4-244-030. Whether Chicago Baseball is a newspaper or a magazine no longer maiers, and 

Left Field Media withdrew its request for an injunction.

Still, it contended, it should receive an award of damages 

to compensate for injury before the City amended the ordi-
No. 19-2904 3

nance. It identified as expenses the costs it had incurred—

after our mandate issued (June 21, 2016) and before being 

notified (October 15) that the old ordinance would no longer 

be enforced—in researching how the license requirement 

worked and discussing licensing with its sellers. Maihew 

Smerge, Left Field Media’s owner and principal employee, 

added that the ordinance had caused him emotional distress.

The district court dismissed the suit for want of a justiciable controversy. The judge did not doubt that the categories 

of expenses Left Field Media had identified could in principle support an award of damages. But the judge stated that, 

because all of the asserted injury occurred after Left Field 

Media filed suit, any loss is not compensable.

The judge did not cite any authority for the conclusion

that injury during the course of litigation cannot support an 

award of damages, and we are not aware of any. Even while 

litigation continues people must mitigate their damages, often at some expense to themselves. If Left Field Media and 

its vendors could neither secure licenses nor obtain relief 

against the ordinance, it would go out of business. Pursuing 

both avenues at once increases the chance of success.

Chicago does not defend the ground on which the district court dismissed the suit. Instead it contends that Left 

Field Media did not show any injury at all.

Let us start with the contention that the very existence of 

the ordinance, and the threat it posed to his business, caused 

Smerge emotional distress. Apart from doctrines that prevent awards of damages for emotional distress in the absence of physical injury, see Metro-North Commuter R.R. v. 

Buckley, 521 U.S. 424 (1997), there is the fact that Smerge is 
4 No. 19-2904

not a litigant. The sole plaintiff is Left Field Media LLC, a 

business organization. Businesses lack emotions. A business 

cannot engage in reverse veil piercing to recover damages 

for a loss suffered by an investor. See, e.g., In re Deist Forest 

Products, Inc., 850 F.2d 340 (7th Cir. 1988); Mid-State Fertilizer 

Co. v. Exchange National Bank, 877 F.2d 1333 (7th Cir. 1989).

The expenses that Left Field Media claims to have incurred on its own behalf are those of unspecified efforts to 

learn how the licensing system worked and what peddlers 

needed to do. “Unspecified” is the key word. Left Field Media does not tell us what these efforts entailed, concretely, or 

what they cost. It never applied for a peddler’s license, so it 

did not pay the $100 fee or incur any related expense. Its 

claim appears to rest wholly on the value of Smerge’s time. 

Its brief depicts Smerge as a one-man band. But if he is a fulltime employee of Left Field Media, the firm has already purchased the value of his time. To recover damages, it would 

need to show some marginal expense, such as overtime 

wages. Nothing of the kind has been asserted, however.

Suppose instead that Smerge is not a full-time employee 

and needed to divert extra hours to Left Field Media’s business. In that event the business’s loss would be the additional compensation needed to purchase this time; once again, 

however, Left Field Media does not contend that it incurred

expenses of that kind. (Smerge might have suffered loss of 

his own if he had to devote more time to Left Field Media’s 

business and less to other endeavors. An opportunity cost is 

a real cost. But we’ve already explained why Left Field Media cannot recover for Smerge’s losses.)

Left Field Media also asserts that it incurred legal fees. If 

it paid a lawyer to find out how to get licenses, or to file ap-
No. 19-2904 5

plications, that could justify an award of damages. By contrast, the legal fees needed to pursue this litigation are not 

compensable, except under a fee-shifting statute such as 42 

U.S.C. §1988. Left Field Media has not filed an affidavit from 

either Smerge or a lawyer explaining how much, if anything, 

it paid in an effort to comply with the ordinance, as opposed 

to an effort to have the ordinance held unconstitutional.

And that’s all there is. Because Left Field Media has not 

offered details, it would not be possible to conclude that it 

suffered even a dollar in marginal costs. A plaintiff need not 

do much to support an award of damages, but it must do 

something. Left Field Media has not seriously tried to show 

an injury, so the district court’s judgment is

AFFIRMED.