### In the



# United States Court of Appeals

For the Seventh Circuit

No. 16

‐ 3582

R IGHT F IELD R OOFTOPS

, LLC, et al

., Plaintiffs

‐ Appellants

,

v.

C HICAGO C UBS B ASEBALL C LUB

, LLC,

et al

., Defendants

‐ Appellees.

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 15 C 551

— Virginia M. Kendall

, Judge.

A RGUED M AY 23, 2017

— D ECIDED S EPTEMBER 1, 2017

Before B AUER

, E ASTERBROOK

, and R IPPLE

, Circuit Judges

.

B AUER

, Circuit Judge. Plaintiffs

‐ appellants Right Field

Rooftops, LLC, doing business as Skybox on Sheffield; Right

Field Properties, LLC; 3633 Rooftop Management, doing

business as Lakeview Baseball Club; and Rooftop Acquisition,

LLC (the “Rooftops”), filed suit against defendants

‐ appellees2 No. 16

‐ 3582

Chicago Baseball Holdings, LLC; Chicago Cubs Baseball Club,

LLC; Wrigley Field Holdings, LLC; and Thomas S. Ricketts

(the “Cubs”), alleging that the Cubs violated antitrust laws

and breached an agreement in which the Rooftops provide the

Cubs 17% of their profits in exchange for the Cubs’ promise

not to obstruct the view of Wrigley Field (the “License Agree

‐ ment”).

The Rooftops control two buildings and businesses that sell

tickets to view Cubs games and other events at Wrigley Field.

Both businesses are situated on the 3600 block of North

Sheffield Avenue in Chicago, Illinois. Spectators have long

enjoyed a view into Wrigley Field from the roofs of the

buildings on Sheffield and Waveland Avenues. In the mid

‐

1980’s, rooftop owners gradually converted their flat

‐ topped

roofs into bleacher

‐ style grandstands and formed businesses

to serve the growing market for viewing Cubs games and other

Wrigley Field events. In 1998, the City of Chicago enacted an

ordinance formally allowing the rooftop businesses to operate

for profit. By 2002, there were eleven such businesses.

In 2000, the City began the process of naming Wrigley Field

a landmark. While the landmarking process unfolded, the

Cubs announced a proposal to expand the Wrigley Field

bleachers in 2001. Prior to the 2002 Major League Baseball

season, the Cubs installed a large green windscreen above the

outfield bleachers, obstructing the views from the rooftop

businesses on Sheffield Avenue.

On December 16, 2002, the Cubs filed suit against a number

of rooftop businesses, including the Rooftops, claiming that

they were misappropriating Cubs’ property by chargingNo. 16

‐ 3582 3

admission fees to watch Cubs games. 1 Prior to the 2004

baseball season, the parties settled the suit by entering into the

License Agreement, in which the rooftop businesses agreed to

pay the Cubs 17% of their gross revenues in exchange for

views into Wrigley Field. The License Agreement expires on

December 31, 2023. Section 6 of the License Agreement

contemplated the expansion of Wrigley Field and established

protocols to facilitate such an expansion. The pertinent

provisions are as follows:

6. Wrigley Field bleacher expansion.

6.1 If the Cubs expand the Wrigley Field

bleacher seating and such expansion so

impairs the view from any Rooftop into

Wrigley Field such that the Rooftop’s

business is no longer viable unless it

increases the height of its available seat

‐ ing, then such Rooftop may in its discre

‐

tion lect to undertake construction to raise

the height of its seating to allow views

into Wrigley Field and the Cubs shall

reimburse the Rooftop for 17% of the

actual cost of such construction.

6.2 If the Cubs expand the Wrigley Field

bleacher seating and such expansion so

impairs the View from any Rooftop into

Wrigley Field such that the Rooftop’s

1 See Chi. Nat’l League Ball Club, Inc. v. Skybox on Waveland, et al

., No. 02 C

9105, United States District Court for the Northern District of Illinois.4 No. 16

‐ 3582

business is no longer viable even if it were

to increase its available seating to the

maximum height permitted by law, and if

such bleacher expansion is completed

within eight years from the Effective

Date, then if such Rooftop elects to cease

operations

... the Cubs shall reimburse

that Rooftop for 50% of the royalties paid

by that Rooftop to the Cubs

...

...

6.4 If the Cubs expand the Wrigley Field

bleacher seating and such expansion

impairs the view from any Rooftop into

Wrigley Field such that the Rooftop ʹ s

Gross Revenue in the year of expansion is

more than 10% below the average Gross

Revenue for that Rooftop in the two years

prior to expansion

... then the affected

Rooftop can seek a reduction in the Roy

‐ alty rate for all subsequent years of the

Term

... .

6.5 Nothing in this Agreement limits the

Cubs’ right to seek approval of the right

to expand Wrigley Field or the Rooftops’

right to oppose any request for expansion

of Wrigley Field.

6.6 The Cubs shall not erect windscreens or

other barriers to obstruct the views of the

Rooftops, provided however that tempo

‐No. 16

‐ 3582 5

rary items such as banners, flags, and

decorations for special occasions, shall not

be considered as having been erected to

obstruct views of the Rooftops. Any ex

‐ pansion of Wrigley Field approved by

governmental authorities shall not be a

violation of this Agreement, including

this section.

On February 11, 2004, the City completed the landmarking

process; Wrigley Field’s landmark designation limited future

alterations to the field. However, following the 2005 baseball

season, the Cubs were permitted to add approximately 1,790

bleacher seats.

In Fall 2009, the Ricketts family and certain related entities

purchased 95% of the Cubs and acquired Wrigley Field from

the Tribune Company. The acquisition was subject to the

preexisting License Agreement. Shortly thereafter, the Cubs

began to acquire ownership interests in a number of the

rooftop businesses, 2 but failed in their attempt to purchase all

of them. In 2010, the Cubs announced plans to install a

2 The Cubs first acquired “Down the Line,” a rooftop business located at

3621 N. Sheffield. In total, six rooftop businesses changed hands: three

to the Cubs and three to unrelated investors. In conjunction with their

Rule 59(e) motion, the Rooftops provided documentation showing that the

holding companies that acquired six of the rooftop properties were owned

by Greystone, LLC, which in turn was owned by Northside Entertainment

Holdings, LLC. Northside, of which Ricketts serves as the executive vice

president, owns and operates the Chicago Cubs.6 No. 16

‐ 3582

“Toyota” sign in left field. Ricketts stated that the sign “[would

not] affect any rooftops and everyone will be able to see.”

In early 2012, the Cubs sought approval from the City for

several Wrigley Field renovations, including bleacher seating

expansion, an outfield sign package, and two video boards.

On April 15, 2013, the Cubs announced a new renovation

plan, which included a 6,000

‐ square

‐ foot video board in left

field and a 1,000

‐ square

‐ foot billboard in right field. The Cubs

released a mock

‐ up of its proposed renovation on May 28,

2013, to all the rooftop business owners, which revealed that

the rooftop businesses would be largely blocked by the

construction.

After numerous meetings and public hearings stretching

out over two years, where a number of rooftop businesses

appeared and objected to the proposed construction, the

Chicago Plan Commission, City Council, and Commission on

Chicago Landmarks approved the Cubs’ plan, including the

construction of the bleachers, video boards, and billboards. The

City approved the Cubs’ final plan to construct a total of eight

outfield signs above the bleachers, including a video board in

both left and right field.

During the approval process, the Rooftops contend that

Cubs’ representatives used the threat of blocking rooftop views

as leverage to force a sale of the rooftops to the Ricketts at

below

‐ market prices. The Rooftops allege that the Cubs

demanded the Rooftops set minimum ticket prices and that the

failure to do so would lead to having their views blocked. Once

the City approved the Cubs’ initial construction plan in July

2013, the Rooftops allege that the Cubs engaged a number ofNo. 16

‐ 3582 7

rooftop business owners in strong

‐ arm negotiations to pur

‐

chase their properties. In May 2014, Ed McCarthy, one of the

owners of the Rooftops, proposed a potential sale to the Cubs

of both Rooftops. McCarthy offered to sell the Rooftops to the

Cubs for fair market value, but was met by a Cubs representa

‐

tive stating that McCarthy should accept whatever sale terms

the Cubs offer because the buildings would be worth nothing

once they no longer had views into Wrigley Field. The Cubs

offered McCarthy a significantly lower price, and McCarthy

refused. The Cubs also told McCarthy that they would block

any rooftop business they did not purchase.

At the annual Cubs Convention held in January 2014, in

response to a question regarding the construction at Wrigley

Field, Ricketts stated:

It ʹ s funny—I always tell this story when someone

brings up the rooftops. So you ʹ re sitting in your

living room watching, say, Showtime. All right,

you ʹ re watching “Homeland.” You pay for that

channel, and then you notice your neighbor

looking through your window watching your

television.

And then you turn around, and they’re charging

the other neighbors to sit in the yard and watch

your television. So you get up to close the

shades, and the city makes you open them.

That’s basically what happened.

The Rooftops contend that the audience, populated by the

media and ticket

‐ purchasing fans, interpreted this statement as8 No. 16

‐ 3582

an accusation that the Rooftops were stealing the Cubs’

property.

The Cubs began construction on their expansion project in

September 2014. The Cubs removed the outfield outer walls,

purchased approximately fifteen feet of sidewalk and street on

Waveland and Sheffield Avenues, increased the bleachers’

seating capacity by several hundred, and increased the bleach

‐

ers’ height by approximately 40 feet. In total, the construction

entails new seats in the outfield bleachers, a new “fan deck” in

the bleachers, increased concessions, signs and video boards,

and new light systems.

The Rooftops filed suit against the Cubs on January 20,

2015, seeking relief for: (1) attempted monopolization; (2) false

and misleading commercial representations, defamation, false

light, and breach of the non

‐ disparagement provision; and (3)

breach of contract. Three weeks later, the Rooftops sought a

temporary restraining order and a preliminary injunction

enjoining the Cubs from constructing a video board. The

district court conducted a hearing, and on February 19, 2015,

it denied the motion for a TRO. On April 2, 2015, the court

denied the Rooftops’ motion for a preliminary injunction. The

Cubs moved to dismiss the complaint under Federal Rule of

Civil Procedure 12(b)(6). The court granted the Cubs’ motion

with prejudice on September 30, 2015.

Specifically, it dismissed the monopolization claims

because: (1) Major League Baseball’s antitrust exemption

applies to the Cubs; (2) the Rooftops failed to establish a

plausible relevant market; and (3) the Cubs cannot be limited

by antitrust law from distributing their own product. ItNo. 16

‐ 3582 9

dismissed the breach

‐ of

‐ contract claim because the plain

language of the contract did not limit expansions to the seating

capacity of Wrigley Field. The court dismissed the six remain

‐ ing counts related to Ricketts’ statements because the Rooftops

failed to plausibly allege any “actionable false statement of

fact.”

The Rooftops moved to alter or amend the judgment under

Rule 59(e) and to file an amended complaint under Rule 15(a).

The Rooftops claimed to have discovered “new evidence” in

the form of public deeds from January and May 2015, indicat

‐ ing that a corporate entity other than the Chicago Cubs had

purchased the competing rooftops. The Rooftops sought to

amend their antitrust claims: (1) to allege that “the business in

which the Rooftops are involved is not the ‘business of base

‐

ball;’” (2) to modify the relevant market to include occasional

non

‐ baseball events at Wrigley Field; and (3) to allege that the

Cubs have no right to “sell views into Wrigley Field.”

The court denied both motions. It held that the Rooftops

were not entitled to relief under Rule 59(e) because the new

evidence was actually a matter of public record and readily

available, and therefore could not be considered “newly

discovered.” It also held that amending the complaint would

be futile because, even with the proposed amendments, the

Rooftops’ antitrust claims would still be subject to the baseball

exemption and lacked a plausible relevant market. This appeal

followed.10 No. 16

‐ 3582

I. DISCUSSION

We review de novo a district court’s decision granting a

motion to dismiss under Rule 12(b)(6), accepting all well

‐ pleaded factual allegations in the complaint as true and

drawing all reasonable inferences in favor of the appellants.

St. John v. Cach, LLC

, 822 F.3d 388, 389 (7th Cir. 2016). To avoid

dismissal, the complaint must “state a claim to relief that is

plausible on its face.” Jackson v. Blitt & Gaines, P.C

., 833 F.3d

860, 862 (7th Cir. 2016) (quoting Ashcroft v. Iqbal

, 556 U.S. 662,

678 (2009)).

On appeal, the Rooftops challenge the district court’s

dismissal of their attempted monopolization, breach

‐ of

‐

contract, and breach of the non

‐ disparagement provision

claims. The Rooftops also contend that district court erred in

denying their motion to amend. We will address each argu

‐

ment in turn.

A. Attempted Monopolization

The Rooftops contend that certain conduct by the Cubs

constitutes monopolistic behavior in violation of the Sherman

Act, 15 U.S.C. § 1, et seq

., including: attempting to set a mini

‐

mum price for tickets; attempting to purchase all rooftop

businesses; acquiring several rooftop businesses, threatening

to obstruct views of rooftop businesses if they refuse to sell to

the Cubs; and constructing the video board that blocks the

Rooftops’ views.

The Supreme Court first exempted the business of baseball

from federal antitrust laws almost a century ago in Federal

Baseball Club of Baltimore v. National League of ProfessionalNo. 16

‐ 3582 11

Baseball Clubs

, 259 U.S. 200 (1922). In Federal Baseball

, the Court

held that the Sherman Act had no application to the “business

[of] giving exhibitions of base ball” because such “exhibitions”

are “purely state affairs.” Id

. at 208. In Toolson v. New York

Yankees, Inc

., 346 U.S. 356, 357 (1953) (per curiam), the Court

reaffirmed Federal Baseball ’s holding, reasoning that the

business of baseball had “been left for thirty years to develop,

on the understanding that it was not subject to existing

antitrust legislation.” Therefore, “if there are evils in this field

which now warrant application to it of the antitrust laws it

should be by legislation.” Id

. Finally, in Flood v. Kuhn

, 407 U.S.

258, 283–84 (1972), the Court noted that Congress had acqui

‐

esced in the baseball exemption and thus “by its positive

inaction

... clearly evinced a desire not to disapprove [it]

legislatively.” See Charles O. Finley & Co. v. Kuhn

, 569 F.2d 527,

541 (7th Cir. 1978) (discussing Federal Baseball and its progeny

before concluding that “the Supreme Court intended to exempt

the business of baseball, not any particular facet of that

business, from the federal antitrust laws.”).

Eventually, Congress took action to narrow the scope of the

baseball exemption in 1998 with the passage of the Curt Flood

Act, 15 U.S.C. § 26b. The Act established that “the conduct,

acts, practices, or agreements of persons in the business of

organized professional major league baseball directly relating

to or affecting employment of major league baseball

players

... are subject to the antitrust laws

... .” 15 U.S.C.

§ 26b(a). The Rooftops do not—and cannot—plausibly contend

that this carve

‐ out applies to the Cubs’ conduct, as it is

unrelated to the employment of Major League Baseball players.12 No. 16

‐ 3582

Instead, the Rooftops argue that their claims are outside the

scope of the baseball exemption because they do not concern

the “rules and restrictions related to baseball itself.” As an

initial matter, the Rooftops’ suggested “rules and restrictions”

litmus test is not supported by case law. However, we have

recognized limits to the scope of the exemption. In Charles

O’Finley

, we found that “[the] exemption does not apply

wholesale to all cases which may have some attenuated

relation to the business of baseball.” 569 F.3d 541 n.51. But we

do not view the Cubs’ conduct as attenuated to the business of

baseball. By attempting to set a minimum ticket price, purchas

‐ ing rooftops, threatening to block rooftops with signage that

did not sell to the Cubs, and beginning construction at Wrigley

Field, the Cubs’ conduct is part and parcel of the “business of

providing public baseball games for profit” that Federal Baseball

and its progeny exempted from antitrust law. See Toolson

, 346

U.S. at 357.

The Rooftops also contend that the exemption is inapplica

‐

ble to Count II, which involved the acquisition of other rooftop

businesses, because Ricketts, rather than the Cubs, engaged in

the anticompetitive conduct. The district court dismissed this

argument, recognizing that the Supreme Court applied the

baseball exemption in Toolson

, in which the defendants

included both the owner and general manager of the Cin

‐

cinnati Baseball Club. See Corbett v. Chandler

, 202 F.2d 428 (6th

Cir. 1953) (per curiam), aff ʹ d sub nom

., Toolson

, supra

. We agree

with the district court.

Finally, the Rooftops argue that the exemption is inapplica

‐

ble because their business is “not to publicly display baseball

games,” but instead “to sell views of live events inside”No. 16

‐ 3582 13

Wrigley Field, including concerts, Big 10 football games, and

professional hockey games. As the Cubs correctly point out,

this contention is at odds with their complaint, which alleges

attempted monopolization of “the market for watching Live

Cubs Games.” It is also belied by the Rooftops’ brief, which

concedes, as it must, that “the most significant portion of the

Rooftops’ current business is to sell views of Cubs games

... .”

Nonetheless, the business model of the Rooftops is not deter

‐

minative. The relevant inquiry is whether the Cubs’ challenged

conduct falls within the business of providing public baseball

games for profit, and we have already found that it does.

Consequently, the Rooftops’ antitrust claims are subject to the

baseball exemption, and were properly dismissed. 3

B. Breach of Contract

The Rooftops contend that the Cubs violated the License

Agreement by constructing the video board that blocks the

views of Wrigley Field from the Rooftops. 4 Section 6.6 of the

License Agreement states the following: “The Cubs shall not

erect windscreens or other barriers to obstruct the views of the

Rooftops

... . Any expansion of Wrigley Field approved by

governmental authorities shall not be a violation of this

Agreement, including this section.”

3 Having determined that the antitrust claims were properly dismissed, we

will forego an analysis of the Rooftops’ relevant market and distribution

arguments.

4 Although the Rooftops’ complaint seeks relief for an anticipatory breach

of contract, we will analyze this claim as a breach of contract, as the district

court did, because the video board has been constructed.14 No. 16

‐ 3582

The basic rules of contract interpretation under Illinois law

are well settled. In construing a contract, the primary objective

is to give effect to the intention of the parties. Gallagher v.

Lenart

, 874 N.E.2d 43, 58 (Ill. 2007) (citation omitted). “A court

must initially look to the language of a contract alone, as the

language, given its plain and ordinary meaning, is the best

indication of the parties’ intent.” Id

. (citation omitted). A

contract must be construed as a whole, viewing each provision

in light of the other provisions. Id

. (citation omitted). “If the

words in the contract are clear and unambiguous, they must be

given their plain, ordinary and popular meaning.” Cent. Ill.

Light Co. v. Home Ins. Co.

, 821 N.E.2d 206, 213 (Ill. 2004)

(citation omitted). However, if the language of the contract is

susceptible to more than one meaning, it is ambiguous.

Gallagher

, 874 N.E.2d at 58 (citation omitted). If the contract

language is ambiguous, a court can consider extrinsic evidence

to determine the parties’ intent. Id

.

The Rooftops argue that the entirety of § 6 contemplates

bleacher expansion, including remedies for various types of

bleacher expansion such as sharing the cost of increasing the

height of the Rooftops’ seating (§§ 6.1, 6.3), or renegotiating the

royalty rate (§ 6.4). The Rooftops’ argument relies in part on

the fact that the title of § 6 is “Wrigley Field bleacher expan

‐

sion[.]” Thus, the Rooftops conclude that the term “any

expansion” in § 6.6 refers only to the expansion of bleacher

seating, rendering the construction of the video board a

violation of the License Agreement. We disagree.

As an initial matter, we note that the Rooftops’ argument is

contrary to the plain, unambiguous language of the provision.

If the parties wished to clarify that “any expansion” meantNo. 16

‐ 3582 15

“bleacher expansion,” they could have done so. This is particu

‐ larly evident in light of the fact that every reference to an

expansion in §§ 6.1 through 6.4 specifies “bleacher seating”

expansion, and only §§ 6.5 and 6.6 use the general term

“expansion.” “[W]hen parties to the same contract use such

different language to address parallel issues

... it is reasonable

to infer that they intend this language to mean different

things.” Taracorp, Inc. v. NL Indus., Inc

., 73 F.3d 738, 744 (7th

Cir. 1996) (analyzing Illinois law). Thus, we presume that the

use of the general term “any expansion” in §§ 6.5 and 6.6 is an

intentional departure from the prior sections’ use of “bleacher

seating” expansion.

In response, the Rooftops, relying on BeerMart, Inc. v. Stroh

Brewery Co.

, 804 F.2d 409, 411 (7th Cir. 1986), argue that “where

the parties have agreed upon a specific term, an apparently

inconsistent general statement must yield to the more specific

term.” The Rooftops contend that the prohibition on “wind

‐

screens and other barriers” is a specific term, and the exception

of “any expansion” is a general term that must yield. First, we

note that BeerMart analyzed Indiana law, not Illinois. However,

even if this principle of construction is applicable under Illinois

law, it is only applicable where a specific and general term

“cannot stand together.” BeerMart

, 804 F.2d at 411. These two

sentences are not inconsistent or contradictory. The second

sentence clarifies that the prohibition of windscreens and

other barriers in the first sentence is not applicable to

any government

‐ approved expansion. Therefore

, BeerMart ’s

construction principle is inapplicable.

The Rooftops argue that our proposed construction renders

the first sentence of § 6.6 meaningless. In their view, the video16 No. 16

‐ 3582

board is a barrier that obstructs the view of the Rooftops.

Following their train of logic, a video board or any other

construction that blocks views into Wrigley Field, whether

government

‐ approved or not, would be impermissible under

the License Agreement. But this assertion is contrary to the

plain language of the provision, which carved out government

‐ approved expansion from the list of prohibited items.

Section 6.6 makes it clear that any government

‐ approved

expansion “shall not be in violation of this Agreement, includ

‐ ing this section .” (emphasis added). This is in direct reference to

the prohibition on windscreens or other barriers in the preced

‐ ing sentence. Again, the Rooftops’ interpretation asks us to

ignore the plain language of the provision. The first sentence

is not meaningless; any windscreen or other barrier that is not

government

‐ approved is still prohibited under the License

Agreement.

The Rooftops also argue that our reading of § 6.6 dis

‐

harmonizes the other provisions of the License Agreement,

specifically the 17% royalty provision in § 3. The Rooftops

contend that if the royalty obligation remains in “full

‐ force”

despite their obstructed views, they will have “assumed

enormous risks and got nothing in return.” See Curia v. Nelson

,

587 F.3d 824, 832 (7th Cir. 2009). The Rooftops fail to acknowl

‐ edge that to the extent their revenues are negatively impacted

by the video board, the Cubs’ royalties will decrease propor

‐ tionately.

But more to the point, the Rooftops fail to acknowledge

that a primary function of a contract is to allocate risks be

‐

tween parties. Here, the risk is that future expansions of

Wrigley Field will obstruct the Rooftops’ views. Section 6.5No. 16

‐ 3582 17

provides a mechanism for the parties to dispute the Cubs’

proposed expansion projects. Section 6.6 declares that if the

Cubs prevail in the dispute, their projects may proceed. That

is precisely what occurred here—the Rooftops vigorously

opposed the Cubs’ expansion efforts, but ultimately lost. The

parties were free to allocate risk in a different manner, but

chose not to do so. See McClure Eng’g Assocs., Inc. v. Reuben H.

Donnelly Corp

., 447 N.E.2d 400, 402–03 (Ill. 1983) (recognizing

“a widespread policy of permitting competent parties to

contractually allocate business risks as they see fit.” (collecting

cases)). Absent a defect in the negotiation process, such as

disparity in bargaining power, absence of meaningful choice

on the part of one party, or the existence of fraud, duress, or

mistake, we will not second

‐ guess that allocation. Dana Point

Condo. Ass’n, Inc. v. Keystone Serv. Co., a Div. of Cole Coin

Operated Laundry Equip., Inc

., 491 N.E.2d 63, 66 (Ill. App. Ct.

1986).

We do not view the royalty provision in § 3 as an inappro

‐ priate allocation of risk. Similarly, we do not find that our

reading of the License Agreement “disharmonizes” the

marketing promotion provision in § 7, as even with obstructed

views, both parties benefit financially by the Cubs’ continued

promotion of the Rooftops.

Because the video board falls within the plain language of

the carve

‐ out for government

‐ approved expansions in § 6.6,

we find that it is not in violation of the License Agreement.

Accordingly, the Rooftops’ breach of contract claim fails.18 No. 16

‐ 3582

C. Non

‐ Disparagement Provision

In addition to § 6, the Rooftops argue that Ricketts violated

§ 8.2, the License Agreement’s non

‐ disparagement provision,

with his remarks at the 2014 Cubs Convention. 5 Section 8.2

states that “[t]he Cubs will not publicly disparage, abuse or

insult the business of any Rooftop or the moral character of

any Rooftop or any Rooftop employee.” Under Illinois law,

disparagement is defined as “statements about a competitor’s

goods which are untrue or misleading and are made to

influence or tend to influence the public not to buy.” Lexmark

Int’l, Inc. v. Transp. Ins. Co

., 761 N.E.2d 1214, 1225 (Ill. App. Ct.

2001) (citation and brackets omitted). The district court found

that the Rooftops failed to establish that Ricketts’ statement

was untrue or misleading. We agree.

Ricketts voiced his opinion as to the nature of the relation

‐ ship between the Cubs and the Rooftops at the 2014 Cubs

Convention. Illinois courts have refused to find this type of

hyperbolic, opinion statement as actionable. See Xlem De

‐ watering Solutions, Inc. v. Szablewski

, No. 5

‐ 14

‐ 0080, 2014 WL

4443445, *5 (Ill. App. Ct. Sept. 8, 2014) (“[S]tatements of

opinion cannot form the basis for a commercial disparagement

claim.” (citation omitted)); Pease v. Int ʹ l Union of Operating

Eng’rs Local 150, et al

., 567 N.E.2d 614, 619 (Ill. App. Ct. 1991)

5 Ricketts’ remarks also formed the basis of the Rooftops’ claims under the

Lanham Act, the Uniform Deceptive Trade Practice Act, and the Illinois

Consumer Fraud and Deceptive Business Practices Act, as well as claims for

defamation and false light. The Rooftops do not challenge the dismissal of

these claims, and thus we limit our discussion to the breach of the non

‐ disparagement provision of the License Agreement.No. 16

‐ 3582 19

(“Words that are mere name calling or found to be rhetorical

hyperbole or employed only in a loose, figurative sense have

been deemed nonactionable.” (citation omitted)). We do not

find Ricketts’ statement to be “untrue or misleading,” as it is

not a factual assertion whose veracity can be proven.

Furthermore, it is not the type of statement that Illinois

courts have found to be “untrue or misleading[.]” In Pekin

Insurance Company v. Phelan

, the defendant attempted to lure

customers away from her employer’s salon by falsely telling

them that the salon was either closing or moving to a new

location. 799 N.E.2d 523, 524 (Ill. App. Ct. 2003). In addition to

telling customers that the salon was relocating, she provided

them with the address of her newly opened salon. Id

. The court

found her statements to be untrue and misleading. Id

. at 526.

The Pekin defendant told an objectively false statement to

mislead customers and ultimately lure them away. In contrast,

Ricketts’ statement was an analogy to explain his perspective

on the contentious relationship between the Cubs and

Rooftops—it was neither untrue nor misleading. Therefore, we

find that Ricketts’ statement did not violate the License Agree

‐

ment’s non

‐ disparagement provision.

Seeking to avoid this result, the Rooftops argue that

because they assert a breach of contract claim rather than a

common law disparagement claim, we should apply principles

of contract interpretation by analyzing the specific language

in § 8.2 to determine if a breach has occurred. Consequently,

the Rooftops contend that any statement that “abuse[s]” or

“insult[s]” the Rooftops also breaches the non

‐ disparagement

provision.20 No. 16

‐ 3582

To make this argument, the Rooftops rely on Rain v. Rolls

‐ Royce Corp

., 626 F.3d 372, 380–81 (7th Cir. 2010), in which we

used the dictionary definition of “disparage” to determine if a

non

‐ disparagement agreement had been violated under

Indiana law. While this approach may have been appropriate

under Indiana law, the Rooftops have not cited to any Illinois

cases following a similar approach. Moreover, Illinois cases

such as Pekin and Lexmark involve non

‐ disparagement provi

‐

sions of insurance policies, which are analyzed similarly to

contracts; those courts used the “untrue or misleading”

standard to analyze claims arguing breach of the policies’ non

‐ disparagement provisions. 799 N.E.2d at 526; 761 N.E.2d at

1218, 1225. Consequently, we reject the Rooftops’ attempt to

broaden the scope of the non

‐ disparagement provision.

D. Motion to Amend

The Rooftops argue that the district court erred in denying

their motion to amend. Rule 15 provides that, as a general rule,

a court “should freely give leave [to amend] when justice so

requires.” Fed. R. Civ. P. 15(a)(2). District courts, nevertheless,

“have broad discretion to deny leave to amend where there is

undue delay, bad faith, dilatory motive, repeated failure to

cure deficiencies, undue prejudice to the defendants, or where

the amendment would be futile.” Arreola v. Godinez

, 546 F.3d

788, 796 (7th Cir. 2008). Generally, we review a district court’s

denial of leave to amend for an abuse of discretion. Runnion v.

Girl Scouts of Greater Chi. & Nw. Ind

., 786 F.3d 510, 524 (7th Cir.

2015). However, “our review for abuse of discretion of futility

‐

based denials includes de novo review of the legal basis for the

futility.” Id

.No. 16

‐ 3582 21

Here, the district court determined that the Rooftops’

proposed amendments would be futile. The Rooftops’ pro

‐ posed amendments addressed their antitrust claims. The

Rooftops sought to include Northside Entertainment Holdings,

LLC as a defendant in an attempt to evade the Sherman Act’s

baseball exemption. However, Ricketts operates this entity,

and it, in turn, owns and operates the Cubs. Based on our

discussion of Toolson above

, we find that the baseball exemp

‐

tion applies with equal force to Northside. If the exemption

applied to the owner and general manager in Toolson

, we see

no reason that it would not extend to the entity that owns the

Cubs, and the Rooftops have not offered a compelling one.

Furthermore, according to the Rooftops’ amended complaint,

Northside is engaged in the same conduct as the other Cubs

defendants that we already found exemplifies “the business of

providing public baseball games for profit.” Consequently, we

agree with the district court that this amendment would be

futile, as the baseball exemption applies to Northside. Based

on this conclusion, we need not review the Rooftops’ addi

‐

tional proposed amendments regarding the relevant market.

II. CONCLUSION

We AFFIRM the district court’s dismissal of the Rooftops’

suit.