BLUE LINE PUB. v. CHICAGO BLACKHAWK HOCKEY TEAM

• Citation: 329 Ill. App.3d 859,769 N.E.2d 97,263 Ill.Dec. 895
• Decision Date: 22 April 2002
• Docket Number: No. 1-00-2480.,1-00-2480.
• Parties: BLUE LINE PUBLISHING, INC., an Illinois Corporation, Plaintiff-Appellant, v. CHICAGO BLACKHAWK HOCKEY TEAM, INC., A Delaware Corporation, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

769 N.E.2d 97

329 Ill. App.3d 859

263 Ill.Dec. 895

BLUE LINE PUBLISHING, INC., an Illinois Corporation, Plaintiff-Appellant, v. CHICAGO BLACKHAWK HOCKEY TEAM, INC., A Delaware Corporation, Defendant-Appellee.

No. 1-00-2480.

Appellate Court of Illinois, First District, First Division.

April 22, 2002.

Rehearing Denied May 31, 2002.

O'Rourke, McCloskey & Moody, Chicago (Mitchell B. Katten, Richard F. Linden and Limo Cherian), for Appellant.

Gozdecki & Del Giudice, Chicago (Eugene E. Gozdecki, Richard A. Del Giudice and Earl E. Farkas), for Appellee. Justice McNULTY delivered the opinion of the court:

Blue Line Publishing sued the Chicago Blackhawk hockey team, alleging that defendant violated the Illinois Antitrust Act (the Act) (740 ILCS 10/1 et seq. (West 1992)) by refusing to grant plaintiff media credentials. Plaintiff claimed that the refusal harmed competition for sales of programs for the hockey games. In an earlier appeal, this court held that the complaint stated a viable claim against defendant for attempting to monopolize the market for game programs. Weinberg v. Chicago Blackhawk Hockey Team, Inc., 274 Ill.App.3d 637, 210 Ill.Dec. 860, 653 N.E.2d 1322 (1995). The trial court on remand granted summary judgment in favor of defendant, and plaintiff appeals. We affirm because the evidence shows the alleged misconduct does not affect a substantial part of the trade or commerce of this state.

Defendant plays about 40 hockey games at home each regular season, plus any playoff games for which the team qualifies. For each home game, defendant sells a program listing the lineups and providing statistics and information about the teams competing in that game.

Plaintiff first attempted to compete with defendant for sales of game programs during the 1990-91 hockey season. Despite repeated requests, defendant never granted plaintiff media credentials, and defendant denied plaintiff access to players and coaches for interviews. Plaintiff's program, called Blue Line, also provided lineups for the game and information and statistics about the competing teams. Defendant sold its program inside the building where the game took place, which was either Chicago Stadium or the United Center. Plaintiff sold its program on streets immediately surrounding the game site.

During the 1990-91 season defendant sold an average of 770 programs per game, and plaintiff sold a few hundred per game. The next season plaintiff sold between 600 and 1,500 programs at each game, averaging about 1,100 programs sold per game. Defendant's sales fell to barely 600 programs per game during the regular season, but the sales increased to 900 per game during the team's extended run through the playoffs.

Defendant's program sales remained in the hundreds per game, rarely exceeding 1,000 for any game for the next several years. Plaintiff continued printing 1,000 to 1,500 programs for each game and distributing any unsold programs to nearby outlets, for free, after the game. Plaintiff sometimes had as many as 500 programs unsold.

The price of defendant's program ranged from $3 to $5, while plaintiff gradually increased the price of Blue Line from $1 per program to $3.50 per program. While plaintiff's tax returns show modest profits from program sales, defendant's witnesses testified that defendant never turned a profit on program sales.

The parties presented cross-motions for summary judgment. The court granted defendant's motion, holding that the programs did not compete against each other in any relevant market.

On appeal, as in the trial court, plaintiff argues that it presented sufficient evidence that Blue Line competed with defendant's program, providing spectators with information designed to enhance enjoyment of the specific games for which the parties printed each program. The competition for sales took place inside and immediately outside Chicago Stadium and the United Center. According to plaintiff, defendant tried to use its monopoly over National Hockey League games in Chicago to gain a monopoly over sale of programs. In the prior appeal this court agreed with plaintiff that it stated a cause of action for violation of section 3(3) of the Act. Weinberg, 274 Ill.App.3d at 642-43,210 Ill.Dec. 860,653 N.E.2d 1322. That section provides that persons violate the Act if they:

"Establish, maintain, use, or attempt to acquire monopoly power over any substantial part of trade or commerce of this State for the purpose of excluding competition * * * in such trade or commerce." 740 ILCS 10/3(3) (West 1992).

Section 11 of the Act provides:

"When the wording of this Act is identical or similar to that of a federal antitrust law, the courts of this State shall use the construction of the federal law by the federal courts as a guide in construing this Act." 740 ILCS 10/11 (West 1992).

Applying section 11, this court held that the Act bans the use of power in one market to extract monopolistic advantage in a second market. Weinberg, 274 Ill. App.3d at 640, 210 Ill.Dec. 860, 653 N.E.2d 1322.

But the Act differs in some respects from federal antitrust law. The Act specifies that it...