have concluded that Clear Channel had failed to show that its acts that the jury believed
amounted to unjustified interference were done in order to further its own business, rather than to
get back at AMA Pro and JamSports for their efforts to deprive Clear Channel of the promotion
contract for the AMA supercross series.

In this regard, the Court notes that the jury could have understood the evidence as
showing that in dealing with stadium managers, Clear Channel went beyond what protection of
its own interests called for, giving rise to an inference that it was acting with a more nefarious
purpose in mind. As JamSports points out, Clear Channel’s actions vis-a-vis many of the
stadiums rationally could be construed as pressure to deny JamSports access to venues that Clear
Channel never intended to use, and to deny JamSports access to others beyond any period that
Clear Channel actually thought it needed for protection of its own events. The jury was not
required to believe the explanations given by Clear Channel’s witnesses for these actions and
rationally could have concluded, in light of the evidence of ill will discussed in the Court’s
original ruling and the motive evidence discussed above, that Clear Channel had not shown that
its acts of interference were done for any reason other than spite and a desire for revenge.
Finally, there was a basis for the jury to find that Clear Channel’s later negotiation and execution
of a promotion contract with AMA Pro did not illuminate its intent during the period of the
alleged interference.

Even though the Court has concluded on reconsideration that entry of judgment as a
matter of law in Clear Channel’s favor was inappropriate, that does not lead to reinstatement of
the verdict. Clear Channel moved in the alternative for a new trial on the ground that the verdict

was against the manifest weight of the evidence. A court may grant a new trial if the verdict is

14


“Mannion’s relation to the Honeywell project arose from his employment relationship with
Stallings.” Jd. at 190-91, 561 N.E.2d at 1141. Thus, the court concluded, Mannion and MMSI
had “provided no basis upon which to invoke the existence of a privilege.” /d. at 191, 561
N.E.2d at 1141.

JamSports relies largely on Mannion to argue that because it had the exclusive right to
negotiate with AMA Pro during the 90 day period after the execution of the letter of intent, Clear
Channel, like Mannion and MMSI in the Mannion case, had no legal right to compete with
JamSports for the AMA contract and thus no entitlement to assert the competition privilege.
Clear Channel raises a serious question about the applicability of Mannion,' but we need not
resolve the issue at this time, for the argument has been forfeited by JamSports as a basis for
reconsidering the Court’s decision to grant Clear Channel judgment as a matter of law.
JamSports had, and bypassed, at least four opportunities to argue that Clear Channel was not
legally entitled to assert the competition privilege. First, in response to Clear Channel's motion
for summary judgment, which relied directly on the competition privilege, JamSports argued not
that the privilege did not legally apply, but rather that Clear Channel was not entitled to summary
judgment because it had employed wrongful means, specifically, an illegal restraint of trade. See
Pl. Mem. in Opp. to Clear Channel Mot. for Summ. Judg. at 44-45. Second, JamSports never
contended at trial that the competition privilege could not legally be asserted by Clear Channel.
Third, JamSports offered no objection to the Court's instruction to the jury that allowed the jury

' Among other things, application of Mannion would seem to blur the distinction
between tortious interference with contract and tortious interference with prospective advantage.
Clear Channel also notes that in Mannion, the allegedly interfering party had given up its right to

compete, which Clear Channel did not do. We need not and do not determine at this time
whether these points warrant non-application of Mannion in the present context.

5


the only one sustained on the issue of liability, a new trial still will be required on the issue of
damages.
Conclusion
For the reasons stated above, the Court grants JamSports’ motion to reconsider [docket #
377-1 & 2]. The Court’s order of August 15, 2005 is vacated to the extent it granted judgment as
a matter of law in favor of the Clear Channel defendants on Count 18. A new trial is ordered on
Count 18, along with the new trial previously ordered as to the issue of damages on Count 3.
/s/ Matthew F. Kennelly

MATTHEW F. KENNELLY
United States District Judge

Date: November 30, 2005

18


there was no basis in the record for a reasonable finding that Clear Channel was motivated
entirely by ill will or spite and thus was not entitled to the competition privilege in the first place.
id, at 1061. The Court stated:
This was not a case in which one entity was simply trying to torpedo

another’s chances to make a deal. That was certainly part of what Clear Channel

was doing, but it was also trying to get the supercross contract for itself. There

was, and could be, no reasonable dispute about that point. Clear Channel

proposed the terms of a deal to AMA Pro; it sent letters and e-mails, and it

initiated meetings and telephone communications, in an all-out effort to get its

foot back in the door and land the contract. In short, Clear Channel was trying to

convince AMA Pro to award Clear Channel, and not JamSports, the supercross

promotion contract. By definition, that amounts to at least a partial motivation on

Clear Channel's part to further its own business. As part of its plan, Clear

Channel can be fairly accused of trashing JamSports and its competing efforts, but

no reasonable jury could say that the desire to compete — put another way, the

desire to get the business for itself—~ had nothing to do with Clear Channel’s

motivation.
Id, at 1061-62 (footnote omitted). In a footnote, the Court noted that Clear Channel had “hedged
its bets” by trying to conclude a deal with another entity to promote an alternate supercross tour,
but we concluded that “no reasonable jury could have found that Clear Channel had abandoned
the possibility of making its own deal with AMA Pro in favor of putting all its eggs into the ...
alternative.” Jd. at 1062 n.2.

In its motion to reconsider, JamSports points to evidence it says supports a finding that
Clear Channel did, in fact, act entirely out of ill will or spite, and not in any part to get the AMA
sanction for itself. Specifically, JamSports argues there was evidence that Clear Channel
believed that it, and it alone, had been responsible for the profitability of the AMA supercross

tour, and that it regarded AMA Pro as an ingrate, or worse, for even considering hiring a different

promoter. There was also evidence that the relationship between Clear Channel and AMA Pro

10


the Court applied a different test in granting judgment as a matter of law, ruling in Clear
Channel’s favor because it had acted at least partly to further its own interests, even though the
Court acknowledged there was also evidence of spite and ill will.

JamSports’ argument does not hold water; it has misread the jury instruction. Indeed,
JamSports’ argument is premised on a purported paraphrase of the instruction that actually adds
words to the instruction and thereby changes its import. The instruction stated that “[a] firm is
entitled to compete for prospective business, so long as it acts with the intention, at least in part,
of furthering its own business interests, and is not motivated by spite or ill will.” Jury
Instructions at 30. This sufficiently advised the jury that what it had to decide was whether Clear
Channel had acted at least partly with the intention of furthering its own interests, or whether, by
contrast, it had acted out of spite or ill will. In its brief, JamSports says the jury was told that it
had to find “(1) that Clear Channel acted with the intent, at least in part, to further its own
business; and (2) that Clear Channel’s actions were in no way motivated by spite or ill will.” Pl.
Mem. in Support of Mot. to Reconsider at 11 (emphasis added). If the words “in no way” or
their equivalent had appeared in the instruction to the jury, perhaps JamSports might have a
point; but those words were not there.

The instruction perhaps could have and should have been clearer — by inserting the word
“solely” after the word “motivated” — but even without this, it was clear enough to communicate
the proper legal principle. Indeed, it is noteworthy that JamSports does not challenge, as a legal
matter, the proposition that a firm claiming the privilege must be “solely motivated by spite or ill
will” to lose the privilege. See JamSports, 382 F. Supp. at 1061 (quoting Cromeens, Holloman,

Sibert, Inc, v. AB Volvo, 349 F.3d 376, 398 (7th Cir. 2003) (in turn, quoting Soderlund Bros., Inc.


to consider the competition privilege with regard to the prospective advantage claim, Fourth, and
perhaps most significantly for present purposes, when Clear Channel moved for judgment as a
matter of law, specifically relying on the competition privilege, JamSports did not so much as
hint in response that Clear Channel was not legally entitled to the privilege. See Mem. in
Support of Clear Channel Defs’ Mot. for Judg. as Matter of Law (etc.) at 10-11; Pl. Opp. to Clear
Channel Post-Judgment Mot. at 13-14.? Having foregone reliance on this argument on the
judgment as a matter of law / new trial issue, JamSports cannot raise it as a basis for
reconsideration. Reconsideration is appropriate, generally speaking, only when the Court
overlooked or misunderstood something; it is an inappropriate way of asserting arguments that
were overlooked by a party to whom the arguments were then available. See, e.g., Bank of
Waunakee v. Rochester Cheese Sales, Inc., 906 F.2d 1185, 1191 (7th Cir. 1990); Quaker Alloy
Casting Co. v. Gulfco Inds., Inc., 123 F.R.D. 282, 288 (N.D. Ill. 1988). JamSports has offered no
reason why, having passed up this argument before, it should be allowed to assert it as a basis for
reconsideration.

JamSports’ third argument is that in granting judgment as a matter of law in Clear
Channel’s favor, the Court in effect changed the legal standard for assessing the prospective
advantage claim. According to JamSports, the instruction to the jury describing the elements of
the prospective advantage claim required the jury, before finding in Clear Channel’s favor on the
competition defense, to find both that Clear Channel acted at least partly to further its own

interests and that its actions were not in any way motivated by spite or ill will. JamSports says

? JamSports’ argument was limited to the contention that on the evidence, Clear
Channel’s assertion of the privilege had been overcome.

6


most favorable to JamSports, the jury reasonably could have found that Clear Channel was, in
fact, motivated entirely by spite or ill will and thus not entitled to the privilege.

Before delving into this issue, we set out the elements that the jury had to consider in
addressing the prospective advantage claim. The jury was told that JamSports had to prove that
it had a reasonable expectation of entering into a business relationship with AMA Pro, that Clear
Channel knew this, and intentionally and unjustifiably interfered, causing termination of
JamSports’ expectation and resulting damage to JamSports. Jury Instructions at 30. If
JamSports proved each of these things, the jury was told, it had to consider “whether Clear
Channel’s actions constituted competing with a competitor for prospective business.” Jd. The
jury was told that Clear Channel had to prove this by a preponderance of the evidence, and it was
given the definition of the competition privilege quoted earlier. If Clear Channel failed to prove
the privilege, the jury was advised, JamSports was entitled to prevail. If Clear Channel proved
the privilege, the jury then had to consider whether JamSports had proven that Clear Channel had
employed “wrongful means” — defined in the instructions as a violation of the antitrust laws.

Jd. at 30-31. If so, then JamSports was entitled to prevail.

In ruling on Clear Channel’s judgment as a matter of law / new trial motion, the Court
explained why the jury’s verdict was best understood as having been based on a determination
that Clear Channel had not proved its entitlement to the competition privilege by a
preponderance of the evidence — and not, for example, as based on a determination that

JamSports had proven wrongful means. JamSports, 382 F, Supp. 2d at 1060. We concluded that

> The jury was told that Clear Channel acted intentionally if it knew interference with the
prospective relationship was substantially certain to occur, and unjustifiably if it acted for the
sole or primary purpose of interfering with JamSports’ expectation. Jury Instructions at 32.

9


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JAMSPORTS AND ENTERTAINMENT, LLC,
Plaintiff,
Case No. 02 C 2298

vs.

PARADAMA PRODUCTIONS, INC., et al.,

Defendants.

MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge:

Plaintiff JamSports and Entertainment, LLC has moved for reconsideration of the Court’s
order granting the Clear Channel defendants’ motion for judgment as a matter of law on
JamSports’ claim of tortious interference with prospective advantage and ordering a new trial on
the question of damages on JamSports’ claim of interference with contract. JamSports asks the
Court to reinstate the jury’s verdict. For the reasons stated below, the Court is persuaded by
JamSports’ argument that it erred in entering judgment in Clear Channel’s favor on the
prospective advantage claim but orders a new trial rather than reinstating the verdict.

Discussion

We begin by briefly summarizing the ruling at issue. See JamSports and Entertainment,
LLC v. Paradama Productions, Inc., 382 F. Supp. 2d 1056 (N.D. Ill. 2005). The case arose from
a letter of intent between JamSports and AMA Pro Racing dated November 2, 2001. The letter
of intent stated the parties’ intention “to enter into an agreement to promote AMA Supercross

events and undertake related sales and marketing matters.” It required AMA Pro and JamSports


instead granted a new trial.

The jury was instructed that Clear Channel bore the burden of proving that it was entitled
to the competition privilege — by proving that it was acting at least partly to further its own
interests, and not solely out of spite or ill will. The Court’s ruling that Clear Channel was
entitled to judgment as a matter of law amounted to a determination that the party bearing the
burden of proof had satisfied it as a matter of law, that no reasonable jury could have found that
it had failed to carry that burden.

In making this determination, the Court was required to view the evidence in the light
most favorable to JamSports, and to draw all reasonable inferences in its favor. See, e.g.,
Filipovich v. K&R Express Systems, Inc., 391 F.3d 859, 863-64 (7th Cir. 2004). The Court was
certainly aware of these requirements; they were noted at the outset of our decision on the post-
trial motions. See JamSports, 382 F. Supp. 2d at 1058. What the Court failed to fully appreciate
and take into account, however, was the interplay between these two points,

JamSports did not bear a burden of proof on the competition privilege issue; the burden
was on Clear Channel to prove by a preponderance of the evidence that it had acted at least in
part for the purpose of furthering its own interests. The Court’s conclusions, however, subtly
shifted the burden. We stated: “Clear Channel argues there is no basis in the record for a
reasonable finding that it was motivated entirely by ill will or spite. The Court agrees.”
JamSports, 382 F, Supp. 2d at 1061 (emphasis in original). And we went on to state: “[nJo jury
reasonably could find that Clear Channel acted as it did completely out of ill will or spite toward
JamSports.” Jd, (emphasis in original). These conclusions misstated the issue. To prevail,

JamSports did not need a “finding” by the jury that Clear Channel was motivated entirely by ill

12


and their respective predecessors had been characterized by acrimony, conflict, and distrust, In
addition, JamSports cites statements by Clear Channel representatives that the company did not
need the AMA sanction to promote a profitable supercross series; that riders and equipment
manufacturers would follow Clear Channel, not AMA Pro; and that the AMA added nothing of
value to the series but merely supplied the referees. JamSports also relies on evidence that Clear
Channel had developed plans to bypass AMA Pro by setting up its own sanctioning body.
Finally, JamSports cites Clear Channel's pursuit of a completely separate supercross sanction
from an international sanctioning body and its efforts to set up a completely separate tour,
arguably for the purpose of “neutralizing” the AMA. From all this evidence, JamSports argues,
the jury rationally could have found that Clear Channel had no intention of trying to make its
own deal with AMA Pro and instead tried to torpedo a JamSports-AMA Pro deal as a way of
getting revenge on the ingrate AMA Pro and the upstart JamSports.

Clear Channel disputes this, contending that everything it did had, at least, a dual effect —
not just hampering JamSports’ efforts, but also furthering its own position by securing resources
for a successful supercross series. Clear Channel also points out that once JamSports’ effort to
secure the AMA sanction failed, Clear Channel obtained the sanction for itself; this, Clear
Channel contends, shows this was at least partly its purpose all along.

Though reconsideration of a ruling is an unusual event, it is appropriate if the Court made
an error of “apprehension” as opposed to an error in its reasoning — in other words, if the Court
misunderstood something when it ruled. See, e.g., Bank af Waunakee, 906 F.2d at 1191.
Following careful reflection, the Court is persuaded that it did, in fact, commit such an error in

granting judgment as a matter of law on the prospective advantage claim, and that it should have

il


v. Carrier Corp., 278 Ul. App. 3d 606, 616, 663 N.E.2d 1, 8 (1995)). For these reasons, the
Court rejects JamSports’ argument that our review of the sufficiency of the evidence was barred
by the jury instruction. We need not consider the other arguments forwarded by Clear Channel in
opposition to this argument.

JamSports’ fourth argument is that the jury’s damage award should not have been
overturned. It argues that the jury reasonably could have found that Clear Channel’s interference
prevented JamSports from entering into a final promotion agreement and thus from earning the
profits that the jury awarded in damages, and that the damages for both the interference with
contract and interference with prospective advantage claims could well be the same. Both points
may be correct, but neither calls into question the Court’s order of a new trial on the question of
damages on the interference with contract claim. The proposition that the jury properly could
have awarded over $17 million in lost profits on the tortious interference with contract claim by
itself does not mean that is what it did or would have done. When one throws into the mix the
fact that the jury awarded only $1 in lost profits against AMA Pro for breaching the contract,
there is ample reason to question whether the jury intended to make a $17 million lost profits
award against Clear Channel for interfering with the same contract — or more specifically, if that
is what it would have done absent the prospective advantage claim.

This brings us to JamSports’ second argument, which we consider last for reasons that
will become clear. JamSports contends that the Court erred in finding that the evidence required
judgment as a matter of law in Clear Channel’s favor on the competition privilege. It argues that
the jury was not required to find that Clear Channel was even partly motivated by a desire to

further its own business interests, and that if one considers the evidence on this point in the light


compete lawfully.

In support of this argument, JamSports relies on Mannion v, Stallings & Co., 204 Ill. App.
3d 179, 561 N.E.2d 1134 (1990). In Mannion, the plaintiff, Mannion, owned certain patents that
he had licensed to his company, third party defendant Mannion Mechanical Services, Inc. MMSI
granted the defendant, Stallings & Co., an exclusive license to manufacture, use, and sell
products covered by the patent. Stallings employed Mannion as a commissioned salesman.
Mannion sued Stallings to recover allegedly unpaid commissions. Stallings counterclaimed
against Mannion and MMSI, alleging they had interfered with a contract and prospective
relations with a third party, Honeywell, that had signed a purchase order with Stallings but
ultimately gave the job to MMSI. The jury found in Stallings’ favor on what the court described
as Stallings’ “action for intentional interference with contract or business expectancy.” Id. at
187, 561 N.E.2d at 1139. On appeal, the Appellate Court ruled that Stallings had a reasonable
expectancy of entering into a business relationship with Honeywell, based on its exclusive right
under the license to market the products Honeywell purchased. Jd. at 188, 561 N.E.2d at 1139.
The court rejected Mannion and MMSI’s claim that they were privileged to interfere in
Stallings’ prospective business relationship with Honeywell. It stated that Mannion and MMSI
had cited no case finding “a defendant’s mere property or economic interest to be [an] equal or
greater interest than the plaintiff's contractual rights or valid business expectancies,” Jd. at 190,
561 N.E.2d at 1140. The court noted that prior decisions had granted “a privilege of lawful
economic competition where the defendant is interfering with a competitor’s prospective
business relationship rather than an existing contract,” but that Stallings had proved “that it had

the exclusive right under the patent to manufacture and sell” the products in question and that


against the manifest weight of the evidence, the damages are excessive (or insufficient), or if for
other reasons the trial was not fair to the moving party. See, e.g., Schick v. Ill. Dept. of Human
Servs., 307 F.3d 605, 610 (7th Cir. 2002). In this case only the first of these grounds is at issue,

The standard applied in assessing whether a new trial should be granted based on the
weight of the evidence is exacting in its own right. A court may not set aside a verdict simply
because it would have come to a different conclusion had it been the trier of fact. See, e.g.,
Ahern v. Scholz, 85 F.3d 774, 780 (1st Cir. 1996); see generally 11 C. Wright, A. Miller & M.
Kane, Federal Practice and Procedure § 2806 at 69 (1995 & Supp. 2005) (“Wright, Miller &
Kane”). Rather, the court must undertake its task with due regard for the role of the jury in our
system of justice. As a leading commentator puts it, “a decent respect for the collective wisdom
of the jury, and for the function entrusted to it in our system, certainly suggests that in most cases
the judge should accept the findings of the jury, regardless of his own doubts in the matter.” 11
Wright, Miller & Kane, supra, § 2806 at 74; see Ryan v. McDonough Power Equipment, Inc.,
734 F.2d 385, 387 (8th Cir. 1984). The Seventh Circuit has recently stated that a court
considering a motion for new trial may not set aside the jury’s verdict “if a reasonable basis
exists in the record to support the verdict, viewing the evidence in the light most favorable to the
prevailing party, and leaving issues of credibility and weight of the evidence to the jury.”
Kapelanski v. Johnson, 390 F.3d 525, 520 (7th Cir. 2004).

There is some indication of conflict in the Seventh Circuit’s precedents about whether a
court considering a motion for new trial may reweigh the evidence, and whether it must view the
evidence in the light most favorable to the party that prevailed. Kapelanski and other recent

Seventh Circuit cases say the answer to the first question is no and the answer to the second is

15


that Clear Channel had not sustained its burden of proof on the competition privilege. But the
clear weight of the evidence pointed in Clear Channel’s favor. In this regard, the Court
incorporates what it originally noted in its erroneous ruling granting judgment as a matter of law.
The evidence of Clear Channel’s contacts with stadium managers formed the core of JamSports’
claim of unjustified interference. There is no question that Clear Channel planned to promote a
supercross series, with or without the AMA sanction, and the clear weight of the evidence
showed that the vast majority of its efforts vis-a-vis stadium managers were done to protect the
profitability of its own prospective tour — albeit somewhat heavy-handedly in some instances. In
addition, although (as the Court noted earlier) the jury could have viewed Clear Channel’s
ultimate obtaining of the AMA sanction as indicating nothing of consequence about its intention
during the period of the alleged interference, the manifest weight of the evidence reflected that
Clear Channel consistently tried to get the AMA sanction before, during, and after the JamSports
exclusivity period. For these reasons and the others cited in our original ruling, the Court finds
that the jury’s determination that Clear Channel had not met its burden of proof on the
competition privilege was against the manifest weight of the evidence and orders a new trial on
the prospective advantage claim.*

This conclusion does not require alteration of the Court's ruling that a new trial as to
damages is required on the tortious interference with contract claim. The Court has previously
explained why the damage award cannot stand, at least on the undifferentiated verdict that the

jury returned, if the only claim sustained is the tortious interference claim. As that claim remains

5 The grant of a new trial will also allow the Court to give a more precise instruction to
the jury regarding the nature of Clear Channel’s burden on the competition privilege issue.

17


counted JamSports’ damages. JamSports, 382 F. Supp. 2d at 1059,

Clear Channel filed a post-trial motion for entry of judgment as a matter of law or in the
alternative for a new trial. The Court granted judgment as a matter of law in Clear Channel’s
favor on the claim of tortious interference with prospective advantage. The Court ruled, in
effect, that Clear Channel had established as a matter of law that it was entitled to the so-called
“competition privilege” as a defense to the prospective advantage claim, and that the only viable
way around that privilege available to JamSports in this case — its contention that Clear Channel
had employed “wrongful means” by violating the antitrust laws — was foreclosed by the jury’s
verdict in Clear Channel’s favor on the Sherman Act claim. Jd. at 1060-62. On the claim of
tortious interference with contract, the Court rejected Clear Channel’s request for entry of
judgment as a matter of law or for a new trial on the issue of liability but ordered a new trial on
the issue of damages. Jd. at 1062-66. The Court concluded that the ruling granting judgment as a
matter of law on the prospective advantage claim, combined with the undifferentiated damage
award against Clear Channel, left a significant uncertainty as to whether the jury would have
returned the same award if the only verdict favoring JamSports had been on the tortious
interference with contract claim. Jd. at 1067-68.

JamSports makes four arguments in support of its request for reconsideration of Court’s
rulings. Its first argument is that Clear Channel was not entitled to assert the competition
privilege at all, JamSports contends that the privilege is available only where the prospective
relationship interfered with is the subject of lawful competition between the plaintiff and the
defendant. JamSports argues that because it had an exclusive right to pursue a relationship with

AMA Pro during the exclusivity period of the letter of intent, Clear Channel was not entitled to


to keep the letter of intent’s terms confidential; it also obligated the parties to negotiate with each
other exclusively and in good faith toward a final agreement for a period of 90 days and to
disclose any proposals received from third parties. Prior to trial, the Court ruled that the letter of
intent was not itself a binding contract for promotion of the AMA supercross tour, but that the
confidentiality and exclusivity provisions were binding and enforceable.

Following expiration of JamSports’ 90 day exclusivity period, AMA Pro ultimately
signed a promotion contract with Clear Channel, not JamSports. JamSports sued AMA Pro for
breach of contract, citing AMA Pro’s noncompliance with the exclusivity and confidentiality
obligations. The jury found in JamSports favor on this claim and awarded damages of
$169,315.19, consisting of $168,315.19 for lost out-of-pocket expenses and $1.00 for lost profits.
JamSports sued the Clear Channel defendants (“Clear Channel”) for interference with the
JamSports-AMA Pro contract, interference with Clear Channel’s prospect of concluding a final
promotion agreement, and violation of the antitrust laws. The jury found in Clear Channel’s
favor on the antitrust claim but in JamSports’ favor on the other two claims. The jury awarded
JamSports lost profits of $17,144,573 and punitive damages of $73,000,000. The award did not
distinguish between the two tortious interference claims, as the jury was not asked to make such
a distinction.

AMA Pro filed a post-trial motion seeking to amend the judgment to require JamSports to
make an election between recovery of the out-of-pocket expenses awarded against AMA Pro for
breach of contract and recovery of the lost profits awarded against Clear Channel for interference
with the contract. AMA Pro did not seek a new trial. The Court rejected AMA Pro’s election of

remedies argument, finding that there was no basis to believe that the jury had effectively double-


will; rather, all it needed was a jury finding that Clear Channel had not met its burden of proving
that it was at least partly motivated to further its own business. In short, rather than trying to
determine whether a reasonable jury could have found against Clear Channel, the Court, in the
quoted passages, asked whether a reasonable jury could have made a finding that favored
JamSports.

The difference may seem subtle, but it is significant. Under the Court’s instructions, the
jury was not required to make a finding in JamSports’ favor on the competition privilege issue; it
was required to find whether Clear Channel had met its burden of proof. The Court’s phrasing of
the issue in essence required a determination that JamSports had carried a burden that the law did
not require it to bear.

Had the Court fully and correctly perceived the significance of the fact that Clear Channel
bore the burden of proof, we would have been required to deny Clear Channel’s motion for
judgment as a matter of law. In determining whether it was possible for a rational jury to find
Clear Channel had not met its burden, we had to review the evidence in the light most favorable
to JamSports — or to put it another way, in the light most unfavorable to Clear Channel.’ Given
this exacting standard, the Court could not appropriately conclude that there was no way for a
reasonable jury to find that Clear Channel had failed to carry its burden. A jury rationally could

* Clear Channel points out that the Court commented that had the antitrust claim been
eliminated at the summary judgment stage, “the prospective advantage claim would have gone
along with it.” JamSports, 382 F. Supp. 2d at 1062. In retrospect, that was an overstatement.
The Court did not actually assess in its summary judgment ruling the sufficiency of evidence on
Clear Channel’s entitlement to the competition privilege. We did not need to do so at that point,
because we concluded that JamSports had offered a basis that would permit a reasonable jury to
find that it had overcome the privilege even if Clear Channel was entitled to assert it. See

JamSports and Entertainment, LLC vy. Paradama Productions, Inc., 336 F. Supp. 2d 824, 852
(N.D. Ill. 2004).

13


yes. See, e.g., Research Sys, Corp. v. IPSOS Publicite, 276 F.3d 914, 920 (7th Cir. 2002); Savino
v. CP. Hall Co., 199 F.3d 925, 935 (7th Cir. 1999) (“In assessing the sufficiency of the evidence
we will not reweigh the evidence or judge the credibility of witnesses. If there is a reasonable
basis in the record for the jury's verdict, it must stand.” ). On the other hand, Thomas v. Stalter,
20 F.3d 298, 304 (7th Cir. 1994), seems to give the opposite answer, stating that in assessing a
motion for new trial, the trial court is entitled to weigh the evidence for itself and, in doing so,
may make its own assessment of the witnesses’ credibility.

It is possible that this inconsistency is more apparent than real. The unquestioned
authority of a court to order a new trial when a jury’s verdict is against the manifest weight of the
evidence contemplates that the court considering the matter will do some weighing of its own —
how else to determine where the “manifest weight” of the evidence lies? But it seems equally
clear that the authority to grant a new trial based on the weight of the evidence is reserved for
cases in which it is readily apparent to the trial judge that jury’s determination was seriously out
of kilter — as the Seventh Circuit has put it, if the verdict “is not rationally connected to the
evidence, if it is born out of passion and prejudice, or if it is monstrously excessive.” Slane v.
Mariah Boais, Inc., 164 F.3d 1065, 1067 (7th Cir. 1999). It is important to point out, however,
that the standard for granting a new trial based on the manifest weight of the evidence cannot be
as narrow as the standard for granting judgment as a matter of law — otherwise the authority to
grant a new trial on this basis would be a dead letter.

The Court concludes that this is a case in which the evidence, taken as a whole, falls
somewhere between the level necessary to survive judgment as a matter of law and the level

necessary to avoid a new trial, The Court has described why the evidence permitted a jury to find

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