Metaphor likening plaintiff to peeping Tom is opinion, not fact

Right Field Rooftops, LLC v. Chicago Cubs Baseball Club,
LLC, — F.Supp.3d —-, 2015 WL 5731736, No. 15 C 551 (N.D. Ill. Sept. 30,
The Rooftops allowed patrons to view live Cubs games from
their location near Wrigley Field, until the Cubs built a video board that
blocked the view from the Rooftops.  Plaintiffs
alleged that the Cubs engaged in anti-competitive behavior and false advertising,
and also breached a contract that provided that the Rooftops would give the
Cubs 17% of their profits in exchange for the Cubs’ promise to not block the
view of Wrigley Field from the Rooftops.  The court dismissed the complaint in its
Antitrust claims failed not just because of the baseball
exemption but also because there was no plausible relevant market. Contract
claims failed because the contract didn’t bar expansions of the facilities
approved by the government, which the video board was.
The Lanham Act and state law deceptive trade practices
claims came from a statement by a Cubs representative in response to a question
about the construction at Wrigley Field:
It’s funny—I always tell this story
when someone brings up the rooftops. So you’re sitting in your living room
watching, say, Showtime. All right, you’re watching “Homeland.” You pay for
that channel, and then you notice your neighbor looking through your window
watching your television.
The Rooftops alleged that this was a defamatory statement alleging
criminality on the part of the Rooftops.  Whether an observer could plausibly perceive a
factual statement depends on “(1) whether the statement has a precise and
readily understood meaning; (2) whether the statement is verifiable; and (3)
whether the statement’s literary or social context signals that it has factual
content.”  Here, no reasonable person
could believe that the speaker was stating a fact, rather than an opinion
through “a readily understandable metaphor” that described his feelings.  “There is no objective way to verify his
statement because there is no way to fact check whether the Rooftops are
similar to those who charge admission to watch their neighbor’s television.”  [There was no mention of charging admission in the analogy, but ok.] This was “hardly an accusation of criminality,”
especially given the decades-old battle between the parties about whether the
Rooftops can let patrons watch the Cubs game for free. No reasonable person
could understand the statement as an accusation of an indictable offense or as
“anything other than the frustrations of an individual who has litigated the
same issue in different fora and in various forms for years.”

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