03-8780.062-JCD October 26, 2006

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

ADVERTISING SPECIALTY INSTITUTE, )

 )

Plaintiff, ) 

 )

v. ) No. 03 C 8780

 ) 

HALL-ERICKSON, INC. d/b/a The )

Motivation Show, and NATIONAL )

PREMIUM SHOW, INC., d/b/a The )

Motivation Show, )

 )

 Defendants. )

MEMORANDUM OPINION

Before the court is plaintiff’s motion for reconsideration of

our ruling on defendants’ motion for summary judgment. For the

reasons stated below, the motion is denied. 

BACKGROUND

This is a breach of contract action brought by Advertising

Specialty Institute (“ASI”) against Hall-Erickson, Inc. (“HallErickson”) and National Premium Show, Inc. (“NPS”). Plaintiff ASI

is a corporation that is involved in the promotional products

industry. In its own words, ASI “acts as a meeting place where

suppliers of promotional products can interact with distributors of

promotional products.” (Amended Complaint, ¶ 7.) Defendants HallErickson and NPS are in the business of producing and managing

trade shows; one of their shows, “The Motivation Show,” is held
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annually in Chicago and is self-described as “The World’s Largest

Collection of Incentive Merchandise, Travel & Meeting Destinations,

Recognition Awards, Promotional Products and Business Gifts.” (Id.

¶¶ 8-9, 11.) ASI sues on a written contract (the “ASI Agreement”)

that it entered into with, ostensibly, The Motivation Show that

concerned ASI’s participation in the show from November 1, 2000

through October 31, 2003. 

The relevant facts of the case are set forth in our Memorandum

Opinion of July 31, 2006, in which we ruled on NPS’s motion for

summary judgment, and will not be repeated here. (Previously, both

defendants had moved for summary judgment. We held oral argument

on defendants’ motions and had concluded that there are genuine

issues of fact as to whether defendant Hall-Erickson was a party to

the ASI Agreement; whether NPS caused the Chicago Convention and

Tourism Bureau to permit Promotional Products Association

International (“PPAI”), a competitor of ASI, to conduct its 2003

show at McCormick Place at the same time defendants conducted The

Motivation Show; and whether the two shows were competitive. We

asked the parties to submit supplemental briefs addressing some

remaining issues in NPS’s motion.) In our memorandum opinion, we

granted NPS’s motion in large part, denying it only to the extent

that we found a genuine factual issue as to whether defendants

breached a “right of first refusal” provision in the ASI Agreement

prior to terminating the ASI Agreement. 
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One of plaintiff’s arguments in its summary judgment briefs

was that NPS breached the ASI Agreement by violating a provision

that prohibited defendants from “enter[ing] into similar agreements

with any other entity . . . for a period of twelve (12) months

following any termination.” Our discussion in relation to that

argument was as follows: 

[T]here is no evidence from which a jury could

reasonably find that defendants entered into a “similar

agreement” with PPAI (or any other entity) either prior

to termination of the Agreement or during the twelvemonth period after termination. . . . The Agreement

prohibited defendants from extending “this agreement” to

any other association such as PPAI, and from entering

into “similar agreements” with any other entity during

the twelve months after termination. There is no

evidence that defendants extended the Agreement to any

other association during the time the Agreement was in

effect. Moreover, plaintiff has failed to come forth

with any evidence that defendants entered into a

“similar agreement” during the time the Agreement was in

effect or during the twelve-month period. An agreement

“similar” to the Agreement between the parties would

necessarily involve The Motivation Show allowing a

competitor of plaintiff to have an exhibit in the show.

That is not what occurred with PPAI; it is doubtful that

defendants entered into any agreement with PPAI, but

there is no evidence that defendants entered into a

“similar” agreement with PPAI. 

(Memorandum Opinion of July 31, 2006 at 8-9 (emphasis added).) 

Plaintiff moves to reconsider in regard to the aboveemphasized language, contending that it is undisputed that PPAI did

in fact have an exhibit at The Motivation Show and that therefore,

PPAI had a “similar agreement” with defendants. Plaintiff also

argues (in its reply brief only and not in its principal brief)

that we erred in ruling that a “similar agreement” would have to
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 Even if PPAI had an exhibit in The Motivation Show, it is still 1/

undisputed that PPAI did not have an exhibit within the ASI products pavilion,

as discussed in footnote 5 of our previous opinion.

include a provision for exhibition in The Motivation Show;

according to plaintiff, we mistakenly construed the word “similar”

as synonymous with “the same.” 

Defendants concede that it is undisputed that PPAI had an

exhibit at the 2002 and 2003 Motivation Shows but contend, among 1

other things, that plaintiff has never alleged that the ASI

Agreement was breached by the exhibit, nor did plaintiff rely on

the existence of the booth in arguing that defendants entered into

a “similar agreement” with PPAI. 

Defendants are correct that plaintiff did not rely on the

exhibit as a basis for its argument that defendants entered into a

“similar agreement” with PPAI. Plaintiff acknowledges that it did

not “highlight” this fact. This is an understatement; not only did

plaintiff fail to “highlight” the fact, it failed to include the

fact in its Rule 56.1 Statement as a fact that would prevent the

entry of summary judgment, and it failed to argue that the exhibit

was evidence that defendants entered into a “similar agreement”

with PPAI. Rather, plaintiff relied on the co-location of PPAI’s

show with The Motivation Show as the basis for its argument. Now

plaintiff has shifted gears and is relying on a new theory, which

is not appropriate in a motion to reconsider. See Granite State

Ins. Co. v. Degerlia, 925 F.2d 189, 192 n.7 (7th Cir. 1991) (a
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motion to reconsider does not serve as the occasion to tender a new

legal theory for the first time). 

Even if plaintiff had raised the argument earlier, it would

not have been successful. An agreement “similar” to the ASI

Agreement would have to include “similar” terms. We agree with

plaintiff that a “similar agreement” does not have to be identical,

but it would have to include more than one of the same essential

terms. The word “similar” means “having characteristics in common”

or “alike in substance or essentials.” Webster’s Third New

International Dictionary 2120 (1971). That PPAI had an exhibit in

The Motivation Show is not enough to create a genuine issue of fact

as to whether PPAI and defendants entered into a “similar

agreement.” Taking plaintiff’s position to its logical extreme,

each exhibit in the show is evidence that the affiliated exhibitor

had an agreement with defendants similar to the ASI Agreement,

which is absurd. 

The ASI Agreement had several essential terms. One was that

ASI would receive not merely an exhibit at The Motivation Show, but

an entire pavilion. Even if it is undisputed that PPAI had an

exhibit at the show, there is no evidence that there was an

agreement to provide it with a entire pavilion like that of ASI.

Moreover, as the court suggested to plaintiff’s counsel at oral

argument on the summary judgment motions, another essential term

was the “right of first refusal” given to ASI “concerning any
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activity” involving the promotional products industry. An

agreement “similar” to the ASI Agreement would have to include a

similar term, and there is no evidence that defendants agreed to

give PPAI a right of first refusal. Plaintiff’s contention that

the arrangement between defendants and PPAI served similar goals

and provided similar benefits as the ASI Agreement misses the

point: the issue is whether defendants and PPAI agreed to terms

similar to those of the ASI Agreement, not whether the goals and

the benefits of the respective relationships were similar. 

CONCLUSION

Plaintiff’s motion to reconsider our ruling on defendant NPS’s

motion for summary judgment is denied. 

DATE: October 26, 2006

ENTER: ___________________________________________

John F. Grady, United States District Judge