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Jordan v. Dominick's Finer Foods

United States District Court, N.D. Illinois, Eastern Division

July 23, 2015

Michael Jordan, et al., Plaintiffs,
v.
Dominick's Finer Foods, et al., Defendants

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[Copyrighted Material Omitted]

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For Michael Jordan, Jump 23, Inc, Plaintiffs: Frederick J. Sperling, LEAD ATTORNEY, Clay A. Tillack, Sondra A. Hemeryck, Schiff Hardin LLP, Chicago, IL.

For Dominick's Finer Foods, LLC, Defendant: Steven P. Mandell, LEAD ATTORNEY, Anne S. Jordan, Stephen J. Rosenfeld, Steven L Baron, Mandell Menkes LLC, Chicago, IL.

For Safeway, Inc., Defendant: Steven P. Mandell, LEAD ATTORNEY, Stephen J. Rosenfeld, Mandell Menkes LLC, Chicago, IL.

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MEMORANDUM OPINION AND ORDER

John Robert Blakey, United States District Judge.

Before the Court are: (1) Plaintiff's Motion to exclude opinion of Rodney Fort [281]; (2) Defendants' Motion in Limine No. 12 to exclude the expert testimony of Andrew Zimbalist [278]; (3) Plaintiff's motion to exclude evidence of cease and desist letters [205]; (4) Plaintiff's motion to exclude evidence of what Defendants would have paid to use his identity [206]; (5) Defendants' Motions in Limine 2-5, 7, 10-11, 13 and 15 [210]; and (6) Defendants' Motion in Limine No. 1 [211]. Each motion will be addressed in turn below.

I. Background

In 2009, Sports Illustrated produced a commemorative issue honoring former Chicago Bull, Birmingham Baron and " Space Jam" star Michael Jordan's induction into the Hall of Fame. The issue was titled Jordan: " Celebrating a Hall of Fame Career." It was not distributed to the magazine's regular subscribers; instead, it was made available only in participating retail stores, with the target markets being the Chicago area and some parts of North Carolina. Although Sports Illustrated has approximately three million

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subscribers, it only produced 140,820 copies of this commemorative issue, and only 41,513 copies were sold.

Sports Illustrated offered Safeway -- a supermarket conglomerate and owner of the now defunct Dominick's supermarket chain in Chicago -- a free one-page ad in the commemorative issue in exchange for, among other things, premium floor space at its Dominick's locations for the display and sale of the magazine. Safeway agreed. The ad in question featured a basketball jersey at the top that read " Michael Jordan" and included the number 23 ( i.e., the number Jordan wore as a player). In the center of the ad it said " YOU ARE A CUT ABOVE," and below that there was a photograph of a Rancher's Reserve tender angus steak, and a $2.00 coupon for a Rancher's Reserve steak at any Dominick's location. Safeway reports that only two coupons were redeemed.

Jordan sued Safeway and Dominick's for their unlicensed use of his persona. In an oral ruling, Judge Milton I. Shadur granted in part Jordan's motion for summary judgment, holding that Safeway violated the Illinois Right of Publicity Act, 765 ILCS 1075/40 (" IRPA" ), by misappropriating Jordan's identity, and Jordan voluntarily withdrew his remaining claims against Defendants [126]. On June 20, 2014, this case was reassigned from Judge Shadur to Judge Robert M. Dow, Jr., and on January 27, 2015 it was reassigned to this Court. The parties are now in preparation for a trial on damages only, currently set to begin on August 11, 2015. [297].

A hearing was held on May 19, 2015, regarding all of the currently pending motions. At that hearing, it became apparent that determining the proper manner of calculating " actual damages" under the IRPA remains the principal issue in the case. Under that Act, the Plaintiff is entitled to " actual damages, profits derived from the unauthorized use, or both." 765 ILCS 1075/40. In support of their respective cases, the parties have proposed conflicting tests for actual damages under the IRPA, with each party naturally relying upon the data points that are most favorable to their own position. It is those tests and data points that are disputed in the currently pending motions. Because the issue of damages underlies all of the motions, the Court will first consider the appropriate calculation of actual damages under the IRPA, and then discuss each motion separately.

II. Damages under the Illinois Right of Publicity Act

The meaning of " actual damages" under the IRPA presents a question of statutory interpretation of an Illinois law. More specifically, the question for the Court is how to instruct the jury regarding the meaning of " actual damages" under the IRPA. When applying or interpreting Illinois state law while sitting in supplemental jurisdiction, the Court is required to make its best prediction of how the Illinois Supreme Court would decide the issue. Research Sys. Corp. v. IPSOS Publicite, 276 F.3d 914, 925 (7th Cir. 2002). If the state supreme court has not spoken on a particular issue, then decisions of the intermediate appellate courts will control " unless there are persuasive indications that the state supreme court would decide the issue differently." Lexington Ins. Co. v. Rugg & Knopp, Inc., 165 F.3d 1087, 1090 (7th Cir. 1999). Finally, if there are no directly applicable state decisions at all, then the Court may consult " relevant state precedents, analogous decisions, considered dicta, scholarly works, and any other reliable data" that might be persuasive on the question of how the state supreme court would likely rule. See Pisciotta v. Old Nat'l Bancorp., 499 F.3d 629, 635 (7th Cir. 2007) (citations and quotation omitted). In this case, even though the Illinois state

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courts have not provided any specific guidance on the meaning of actual damages under the IRPA, they have provided a rubric for the interpretation of the statute.

a. Statutory Interpretation

The fundamental rule of statutory construction requires courts to determine and give effect to the legislature's intent. General Motors Corp. v. Pappas, 242 Ill.2d 163, 180, 950 N.E.2d 1136, 351 Ill.Dec. 308 (2011).[1] The statutory language, given its plain and ordinary meaning, best indicates the legislature's intent. Id. When the statutory language is clear and unambiguous, a court must give effect to the statute's plain meaning without resorting to extrinsic statutory-construction aids. Id. Here, the term " actual damages" is not defined by the statute itself, nor is it defined by any applicable case law interpreting the statute.

In such an instance, it is " appropriate to employ a dictionary to ascertain the meaning of an otherwise undefined word or phrase." Landis v. Marc Realty, L.L.C., 235 Ill.2d 1, 8, 919 N.E.2d 300, 335 Ill.Dec. 581 (2009). In fact, the Illinois Courts of Appeal have previously relied on Black's Law Dictionary to define " actual damages" where it was undefined by statute. See Smith, Allen, Mendenhall, Emons & Selby v. Thomson Corp., 371 Ill.App.3d 556, 862 N.E.2d 1006, 1009, 308 Ill.Dec. 803 (Ill.App.Ct. 2006). Black's Law Dictionary defines " actual damages" as an " amount awarded to a complainant to compensate for a proven injury or loss; damages that repay actual losses -- also termed compensatory damages; tangible damages; real damages." Damages, Black's Law Dictionary (10th ed. 2014). While this definition explains what actual damages are generally, it does not explain what they are specifically for the infringement of the right of publicity. The phrase therefore requires additional interpretation.

Where a statute requires interpretation and the exact legislative intent cannot be ascertained from the plain and ordinary meaning of its language alone, the court is guided by statutory history and the rules of statutory construction. People v. Holm, 2014 IL App. (3d) 130582, 387 Ill.Dec. 616, 22 N.E.3d 1269, 1272 (Ill.App.Ct. 2014). Generally, the interpretation of a statute must be grounded on the nature and object of the statute, as well as the consequences which would result from construing it one way or another. Andrews v. Foxworthy, 71 Ill.2d 13, 373 N.E.2d 1332, 1335-36, 15 Ill.Dec. 648 (Ill. 1978). Legislative intent may be ascertained from the reason and necessity for the act, the evils sought to be remedied, and the objects and purposes sought to be obtained. In re Marriage of Antonich, 148 Ill.App.3d 575, 499 N.E.2d 654, 656, 102 Ill.Dec. 97 (Ill.App.Ct. 1986). In short, the statutory " text" must be placed within its " context" to be properly understood.

Unfortunately, in this instance, there is no relevant statutory history, and the other canons of statutory interpretation provide no meaningful guidance on the definition of actual damages for cases involving the right of publicity. The Court thus turns to " relevant state precedents, analogous decisions, considered dicta, scholarly works, and any other reliable data." Pisciotta, 499 F.3d at 635.

b. Other Authority

Under Illinois Supreme Court Rule 239, whenever the civil version of the Illinois Pattern Jury Instructions (" IPI" ), " contains an instruction applicable in a civil case," and the court determines, " giving due consideration to the facts and the prevailing

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law," that the jury " should be instructed on the subject," then the " IPI instruction shall be used, unless the court determines that it does not accurately state the law . . ." IL R S.Ct. Rule 239. Furthermore, whenever the " IPI does not contain an instruction on a subject on which the court determines that the jury should be instructed, the instruction given in that subject should be simple, brief, impartial, and free from argument." Id. Finally, in choosing the appropriate instruction to give, it is proper to consider IPI instructions for similar actions. See Sanchez v. Black Bros. Co., 98 Ill.App.3d 264, 423 N.E.2d 1309, 1320, 53 Ill.Dec. 505 (Ill.App.Ct. 1981); Schutt v. Terminal R. R. Ass'n of St. Louis, 79 Ill.App.2d 69, 223 N.E.2d 264, 268 (Ill.App.Ct. 1967).

Here, while the IPI do not contain an instruction for actual damages under the IRPA, important guidance can be found in a number of related instructions concerning compensatory damages. Instruction 30.01 concerns the measure of damages to property and reads as follows:

If you decide for the plaintiff on the question of liability, you must then fix the amount of money which will reasonably and fairly compensate him for any of the following elements of damages proved by the evidence to have resulted from the wrongful conduct of the defendant.
[Here insert the elements of damages which have a basis in the evidence]
Whether any of these elements of damages has been proved by the evidence is for you to determine.

IPI 30.01. The general instruction requires that the Court insert the relevant elements of damages into the bracketed section in the middle of the instruction. While there is no IPI instruction for damages under the IRPA as noted above, Illinois case law does provide for the elements of damages in a closely analogous context -- civil conversion.

The elements of conversion are: (1) the unauthorized and wrongful assumption of control or ownership by one person over the personalty of another; (2) the other person's right in the property; (3) the right to immediate possession of the property; and (4) a demand for possession. Stevens v. Newman, No. 5-13-0338, 2015 IL App. (5th) 130338-U, 2015 WL 1774798, at *9 (Ill.App.Ct. 2015). This compares favorably with the action here because the right of publicity is essentially a property right under the IRPA, Ainsworth v. Century Supply Co., 295 Ill.App.3d 644, 693 N.E.2d 510, 514, 230 Ill.Dec. 381 (Ill. 1998), and the Defendant here has wrongfully assumed control of that right.

Generally, the measure of damages for conversion is the fair market value of the property at the time and place of the conversion, plus legal interest. Jensen v. Chicago & Western Indiana R.R. Co., 94 Ill.App.3d 915, 419 N.E.2d 578, 593, 50 Ill.Dec. 470 (Ill.App.Ct. 1981). It is the plaintiff's burden to show a reasonable basis to determine the value of items converted. Long v. Arthur Rubloff & Co., 27 Ill.App.3d 1013, 327 N.E.2d 346, 355 (Ill.App.Ct. 1975). The evidence must " afford some reasonable and proper basis for ascertaining value," and at " a minimum, it must rise to the dignity of proof, and supply such elements or standards for measuring value to enable the trier of fact to exercise its judgment." Id. Under long-standing precedent, the Illinois courts do not restrict the manner in which the fair market value of the property should be computed, id., provided that damages may " not be predicated on mere speculation, hypothesis, conjecture or whim" but instead must be based on any evidence that shows " a basis for the computation of damages with a fair degree of probability." Application of Busse, 124 Ill.App.3d 433, 464 N.E.2d 651, 655,

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79 Ill.Dec. 747 (Ill.App.Ct. 1984).

In light of the above authority, it is apparent that the actual damages for Plaintiff's infringed right of publicity under the IRPA can be proven in more than one manner, provided the factual method of proof satisfies two legal criteria: (1) the method must be based on the fair market value of the infringing use at the time of the infringement, plus interest; and (2) the method must not be predicated on mere speculation or conjecture.

As such, given the circumstances in this case, the Court finds that the following jury instruction properly defines " actual damages" under the IRPA:

If you decide for the plaintiff on the question of liability, you must then fix the amount of money which will reasonably and fairly compensate him for any of the following elements of damages proved by the evidence to have resulted from the wrongful conduct of the defendant:
Plaintiff's actual damages, which are the fair market value of the infringing use of Plaintiff's identity at the time of the infringement, plus interest.
It is the plaintiff's burden to show a reasonable basis to determine the value, and the method of proving this value may not be based on mere speculation or conjecture.
The factual basis may include evidence of past transactions showing the value of comparable uses, including past transactions that were ...

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