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08/02/95 MARK G. WEINBERG AND BLUE LINE PUBLISHING

August 2, 1995

MARK G. WEINBERG AND BLUE LINE PUBLISHING, INC., AN ILLINOIS CORPORATION, PLAINTIFFS-APPELLANTS,
v.
CHICAGO BLACKHAWK HOCKEY TEAM, INC., A DELAWARE CORPORATION, DEFENDANT-APPELLEE.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE KENNETH GILLIS, JUDGE PRESIDING.

Petition for Leave to Appeal Denied December 6, 1995.

The Honorable Justice Rizzi delivered the opinion of the court: Greiman, P.j., and Cerda, J., concur.

The opinion of the court was delivered by: Rizzi

JUSTICE RIZZI delivered the opinion of the court:

Plaintiffs, Mark G. Weinberg and Blue Line Publishing, Inc., *fn1 brought an action against defendant, Chicago Blackhawk Hockey Team, Inc. (Blackhawks) for violations of the Illinois Antitrust Act (the Act). See 740 ILCS 10/3 (West 1992). Plaintiffs alleged that the Blackhawks violated the Act by (1) refusing to grant plaintiffs media credentials and press access to the Chicago Stadium for the Blackhawks' practices, press conferences and post-game interviews; (2) interfering with an advertising contract between plaintiffs and one of its advertisers; and (3) instigating the arrest of plaintiff Weinberg while he was selling The Blue Line on the streets surrounding the Chicago Stadium. Pursuant to the Blackhawks' motion to dismiss for failing to state a claim, the trial court dismissed the allegations relating to the first and third claims with prejudice, and dismissed the allegations relating to the second claim without prejudice.

On appeal, plaintiffs argue only the dismissal of the allegations relating to the first claim. Accordingly, the sole issue before us is whether the trial court properly dismissed the allegations in plaintiffs' complaint relating to defendant's refusal to grant plaintiffs media credentials and press access to Chicago Blackhawks' practices, press conferences and post-game interviews. We reverse and remand.

When reviewing a motion to dismiss for failing to state a claim, we accept all properly pleaded facts as true, as well as all reasonable inferences which may be drawn from those facts. Dworak v. Village of Wilmette (1993), 249 Ill. App. 3d 275, 277, 618 N.E.2d 974, 976, 188 Ill. Dec. 404. A complaint should be dismissed upon such a motion only where it is clear that the complaint contains no allegations of fact which if proven would allow plaintiff to recover. People ex rel. Peters v. Murphy Knight (1993), 248 Ill. App. 3d 382, 386, 618 N.E.2d 459, 463, 187 Ill. Dec. 868. Moreover, a trial court's ruling on a motion to dismiss for a failure to state a cause of action will be reversed only where an abuse of its discretion has occurred. Knox College v. Celotex Corp. (1982), 88 Ill. 2d 407, 422, 430 N.E.2d 976, 983, 58 Ill. Dec. 725.

A fair reading of plaintiff's complaint reveals the following. The plaintiffs and the Blackhawks publish competing program guides. Plaintiffs publish and sell The Blue Line in the streets surrounding the Chicago Stadium. Each issue of The Blue Line is written for that day's specific game and contains statistical information regarding the Blackhawks and other National Hockey League teams current through the date of publication. The Blackhawks, on the other hand, control and profit from the sale of their game day program, Face Off. The Blue Line and Face Off are the only game day programs published for the Blackhawks' games.

The Blackhawks have exclusive control over the following: (1) the grant or denial of media credentials for Blackhawks' games and practices at the Chicago Stadium; (2) access to the Blackhawks' players and coaching staff during the games and practices; (3) access to the press box and press room at the Chicago Stadium; and (4) access to regularly scheduled press conferences at the Chicago Stadium.

On February 18, 1991, plaintiffs requested media credentials for the remaining home games for the Blackhawks' 1990-91 season. The Blackhawks denied plaintiffs' request stating that the credentials were granted on a first come first served basis and that no credentials remained for the 1990-91 season. On June 6, 1991, one week after the end of the 1990-91 season, plaintiffs made a written request to the Blackhawks for media credentials for the upcoming 1991-92 season. On June 14, 1991, plaintiffs made a second written request. The Blackhawks denied plaintiffs' requests on September 8, 1991. On November 15, 1991, plaintiff again made a written request for media credentials. The Blackhawks did not respond to this request.

The assistant director of public relations of the Blackhawks was quoted as saying that The Blue Line was denied media credentials because, "I don't think we want to set aside credentials for a publication that is conceivably competing against Goal." Goal was the predecessor program of Face Off. Plaintiffs' requests for media packets which the Blackhawks distribute from time to time and which contain statistical information and player photographs have also been repeatedly denied.

Plaintiffs contend that the above allegations of fact establish a violation of the Act. Specifically the above allegations implicate § 3(3) of the Act which states that a person will be deemed to have committed a violation of the Act who shall:

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 or of controlling, fixing, ormaintaining process in such trade or commerce. . . 740 ILCS 10/3(3) (West 1992). *fn2

Plaintiffs refer to two separate theories under which to prove a violation of § 3(3) of the Act. The first theory is known as monopoly leveraging. Monopoly leveraging occurs where a party has monopoly power in one market, and uses this power to extract a competitive advantage in a second market. State of Ill. ex rel. Hartigan v. Panhandle Eastern (C.D.Ill. 1990), 730 F. Supp. 826, 923-24, aff'd by State of Ill. ex rel. Burris v. Panhandle Eastern (7th Cir. 1991), 935 F.2d 1469. In the present case, plaintiffs allege that the Blackhawks are using their monopoly ...


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