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Michael Jordan v. Jewel Food Stores

February 15, 2012

MICHAEL JORDAN, PLAINTIFF,
v.
JEWEL FOOD STORES, INC., AND SUPERVALU INC., DEFENDANTS.
JEWEL FOOD STORES, INC., AND SUPERVALU INC., THIRD-PARTY PLAINTIFFS,
v.
TIME INC. AND VERTIS, INC., THIRD-PARTY DEFENDANTS.
TIME INC., THIRD-PARTY COUNTER-PLAINTIFF,
v.
JEWEL FOOD STORES, INC., AND SUPERVALU INC., THIRD-PARTY COUNTER-DEFENDANTS.



The opinion of the court was delivered by: Judge Feinerman

MEMORANDUM OPINION AND ORDER

In 2009, when Plaintiff Michael Jordan was inducted into the Naismith Memorial Basketball Hall of Fame, Third-Party Defendant Time Inc. published a Sports Illustrated Presents commemorative issue devoted to celebrating his career. Doc. 77-1 at 2-3. Time asked numerous businesses, including Defendant/Third-Party Plaintiff Jewel Food Stores, Inc., to design a page for the issue "with some play on words or design that is specific to Michael Jordan." Doc. 102 at ¶ 29. Jewel paid nothing for the opportunity, but did agree to stock and sell the issue at special displays by the checkout counters of its grocery stores. Doc. 101 at ¶ 15. Jewel's internal copywriter created a message, and its marketing vendor, Third-Party Defendant Vertis, Inc., designed the graphics. Doc. 102 at ¶¶ 31, 32, 34. Jewel's page and the issue's cover are reproduced at the end of this opinion.

The page features a pair of basketball shoes spotlighted on the hardwood floor of a basketball court. The number Jordan wore for most of his tenure with the Chicago Bulls (23) appears on the tongue of each shoe, with the following message positioned above:

A Shoe In! After six NBA championships, scores of rewritten record books and numerous buzzer beaters, Michael Jordan's elevation in the Basketball Hall of Fame was never in doubt! Jewel-Osco salutes #23 on his many accomplishments as we honor a fellow Chicagoan who was "just around the corner" for so many years.

Beneath the text is Jewel's logo, which features its registered trade name "Jewel-Osco" in large, underlined print. Beneath the logo, in smaller font, is Jewel's slogan: "Good things are just around the corner." Jewel operates about 175 grocery stores in the greater Chicago area-hence the reference to Jordan being Jewel's "fellow Chicagoan." The page mentions no specific Jewel product or service; Jewel does not sell basketball shoes.

Displeased with this unsolicited salute, Jordan sued Jewel in the Circuit Court of Cook County, claiming that Jewel had improperly used his identity without authorization. The complaint alleges violations of the Illinois Right of Publicity Act, 765 ILCS 1075/1 et seq.; the Lanham Act, 15 U.S.C. § 1125(a); the Illinois Consumer Fraud and Deceptive Trade Practices Act, 815 ILCS 505/1 et seq.; and the common law tort of unfair competition. Jewel removed the case to federal court and filed a third-party complaint against Time and Vertis, seeking contribution and indemnification. Jewel's parent company, Supervalu Inc., was added as Jewel's co-defendant and as a third-party plaintiff. Except where the distinction is pertinent, Jewel and Supervalu will be referred to together as "Jewel." Time filed third-party counterclaims against Jewel and Supervalu for breach of contract and indemnification.

Before the court are Jewel's motion for summary judgment on all of Jordan's claims and Jordan's cross-motion for partial summary judgment, which asks the court to find that Jewel made commercial use of his identity. A significant and potentially dispositive issue to Jordan's claims is whether Jewel's page is "noncommercial speech," which receives full First Amendment protection, or "commercial speech," which receives lesser protection. See Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n of N.Y., 447 U.S. 557, 561-63 (1980). For the following reasons, Jewel's page is noncommercial speech. Because the parties did not adequately address the consequences to Jordan's various claims of such a holding, the court defers consideration of whether judgment in favor of Jewel and against Jordan should follow.

A. Whether The Classification Of Jewel's Page As Commercial Or Noncommercial Speech Is An Issue of Law For The Court

Jordan and Jewel agree that the classification of speech as commercial or noncommercial presents an issue of law for the court. Doc. 146 at 1-3; Doc. 156 at 2-3. That assessment is correct. See Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 65 (1983) ("Because the degree of protection afforded by the First Amendment depends on whether the activity sought to be regulated constitutes commercial or non-commercial speech, we must first determine the proper classification of the mailings at issue here."); Connick v. Myers, 461 U.S. 138, 148 n.7, 150 n.10 (1983); Facenda v. NFL Films, Inc., 542 F.3d 1007, 1016 (3d Cir. 2008) ("the categorization of speech is a question of law that [the court] must resolve through independent review" of the speech at issue); Joe Dickerson & Assocs., LLC v. Dittmar, 34 P.3d 995, 1003 (Colo. 2001) ("The question of whether a use of plaintiff's identity is primarily commercial or noncommercial is ordinarily decided as a question of law."); Dryer v. NFL, 689 F. Supp. 2d 1113, 1118-19 (D. Minn. 2010) ("[T]he Supreme Court has . insisted that the ultimate question of whether speech is commercial is not factual but is a question of law.") (citing Connick); Raymen v. United Senior Ass'n, 409 F. Supp. 2d 15, 23 (D.D.C. 2006) ("Whether a communication is commercial or noncommercial is a question of law."); Gorran v. Atkins Nutritionals, Inc., 464 F. Supp. 2d 315, 326-28 (S.D.N.Y. 2006), aff'd, 279 F. App'x 40 (2d Cir. 2008).

Jordan and Jewel likewise agree that various considerations bearing on the classification of speech as commercial or noncommercial-whether the speech is an advertisement, whether the speech refers to specific products or services, and whether the speech has an economic motivation, see Youngs Drug, 463 U.S. at 66-67-present issues for the court and not a jury. Doc. 146 at 6-7; Doc. 156 at 3-5. That assessment is correct as well. In Youngs Drug, the Supreme Court evaluated those considerations on the record before it, without any suggestion that jury participation was required or even appropriate. 463 U.S. at 66-68. The Seventh Circuit has employed the same approach when classifying speech as commercial or noncommercial. See United States v. Benson, 561 F.3d 718, 725-26 (7th Cir. 2009); see also, e.g., Hoffman v. Capital Cities/ABC, Inc., 255 F.3d 1180, 1185-86 (9th Cir. 2001).

All that said, Jordan maintains that "if material facts relevant to the court's determination of whether the speech is commercial speech are in dispute, the jury should be given the opportunity to resolve them through the use of special interrogatories." Doc. 156 at 6. Even assuming Jordan were right, no evidentiary hearing is required here. Jordan and Jewel primarily dispute not the material historical facts surrounding Jewel's page, but the legal conclusions to be drawn from those facts. Moreover, given the procedural posture, any genuine disputes of material fact presented by the record have been resolved in Jordan's favor. Accordingly, it is appropriate for the court to decide whether Jewel's page is commercial or noncommercial speech.

B. Whether Jewel's Page Is Commercial Or Noncommercial Speech

In Board of Trustees of State University of New York v. Fox, 492 U.S. 469 (1989), the Supreme Court held that "speech that proposes a commercial transaction . is what defines commercial speech." Id. at 482. Four years later, the Court reiterated that "the proposal of a commercial transaction [i]s 'the test for identifying commercial speech.'" City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 423 (1993) (quoting Fox, 492 U.S. at 473-74). And just last year, the Court referenced the "commonsense distinction between speech proposing a commercial transaction, which occurs in an area traditionally subject to government regulation, and other varieties of speech." Sorrell v. IMS Health Inc., 131 S. Ct. 2653, 2674 (2011) (emphasis deleted) (internal quotation marks omitted).

Although the Supreme Court occasionally articulates the definition in slightly different ways, the Seventh Circuit has adhered to what Discovery Network called "the test for identifying commercial speech," which turns on whether the speech proposes a commercial transaction. See Commodity Trend Serv., Inc. v. Commodity Futures Trading Comm'n, 149 F.3d 679, 684-85 (7th Cir. 1998). Applying that test, the Seventh Circuit expressly held that speech is not commercial if it does not propose a commercial transaction. Id. at 686 ("The advertised publications . are not commercial speech because they do not propose a commercial transaction between [the speaker] and a specific customer.") (citing Fox, 492 U.S. at 473). The First and Ninth Circuits are in accord. See Wine & Spirits Retailers, Inc. v. Rhode Island, 418 F.3d 36, 49 (1st Cir. 2005) ("The provision of advertising and licensing services is not speech that proposes a commercial transaction and therefore does not constitute ...


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