because the appearance provision, unlike the other provisions dealing with Jump's prior approval, does not require that 23 Food seek Jump's approval prior to taking some contractually identified action. To the contrary, this clause merely makes clear that Jordan cannot be obligated to appear at the restaurant and that any appearances he does make are within his sole judgment. This is very different from the site acquisition, advertising, and product licensing provisions discussed above where Jump was granted the explicit right to approve 23 Food's or Silverbergs' actions, subject to a reasonableness requirement. We believe that these provisions are nearly identical to the additional restaurant provision in the side agreement (except for the crucial limiting language) and thus are properly viewed as bearing on the parties' intent with respect to the inclusion or omission of a reasonableness restriction. The appearance provision is not relevant in this regard.
In the final section of its brief, 23 Food attempts to show how the imposition of a good faith standard on Jump's discretion to disapprove additional restaurants would be consistent with the parties' reasonable expectations. First, it argues that since the parties expressly adopted Illinois law in their agreements, they also adopted the implied covenant of good faith and fair dealing. However, this argument begs the question, since, as we have already discussed, the covenant is not an absolute principle, but rather is viewed in relation to the parties' reasonable expectations. It is circular for 23 Food to argue that the incorporation of the covenant would be consistent with reasonable expectations simply because Illinois law adopts a reasonable expectations test. We therefore reject this argument.
23 Food next argues that Jump's discretion to disapprove additional restaurants should be limited since "Plaintiffs have turned the Michael Jordan's Restaurant concept into an overwhelming success and ... Mr. Jordan has personally received significant monetary benefits in the form of royalty payments to the parties' agreements due that success [sic]." (Plfs.Opp.Mem.at 9). Further, since the opening of additional restaurants could result in sales of "approximately $ 60-80 million dollars per year," a substantial amount of that going to Jordan, Jump should not be allowed to arbitrarily deny such an expansion (id. at 10). We do not see why the restaurant's current or future success has any bearing on Jump's ability to exercise unfettered discretion with respect to the approval of any additional restaurants. The "monetary benefits" Jordan has received or could possibly receive from plaintiffs pale in comparison to the international value of Jordan's name. It is not "unreasonable," then, for Jordan to want to strictly control the use of his name so that he could make decisions about its licensing that would allow him to achieve the highest possible financial return.
Finally, 23 Food argues that plaintiffs were granted the right to open additional restaurants based on the Name, and it is therefore consistent with the parties' expectations that Jump would not unreasonably prevent plaintiffs from their planned expansion. However, the language of the contract controls this point. That language simply provides that "in the event [the Silverbergs] .. desire to open any additional restaurants based on the Name ..., Jump shall have the right to review and approve each additional restaurant opportunity on a case-by-case basis." In other words, the contract does not grant plaintiffs any "right" to expand. Rather, it grants Jump the "right to review and approve" any proposed expansion. We will not impute any additional terms into the contract where the plain language is clearly and unambiguously to the contrary. See Tishman Midwest Management Corp., 500 N.E.2d at 434.
Therefore, we find that under the agreements that govern the ownership and operation of the restaurant in this case, Jump has the right not to approve the opening of additional restaurants based on Michael Jordan's name, likeness, voice, and persona in the Chicago metropolitan area.
For the foregoing reasons, Jump's motion for summary judgment on Count II is granted.
JAMES B. MORAN
Senior Judge, U.S. District Court
Feb 25, 1998.