Left Field Media LLC v. City of Chicago ( 2020 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-2904
LEFT FIELD MEDIA LLC,
Plaintiff-Appellant,
v.
CITY OF CHICAGO, ILLINOIS,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 15 C 3115 — Jorge L. Alonso, Judge.
____________________
SUBMITTED MAY 6, 2020* — DECIDED MAY 15, 2020
____________________
Before EASTERBROOK, HAMILTON, and BRENNAN, Circuit
Judges.
EASTERBROOK, Circuit Judge. Four years ago we held that
Chicago is entitled to limit sales on the streets adjacent to
Wrigley Field, home of the Chicago Cubs. Left Field Media
LLC v. Chicago, 822 F.3d 988 (7th Cir. 2016). But we remand-
* The parties’ joint motion to waive oral argument is granted.
2 No. 19-2904
ed for further proceedings on a magazine seller’s contention
that an ordinance requiring all peddlers to be licensed is in-
valid because of an exception for newspapers. Id. at 991–94.
Requiring speakers to be licensed is problematic, doubly
so when government distinguishes among kinds of speech.
See, e.g., Reed v. Gilbert, 135 S. Ct. 2218 (2015); Watchtower Bi-
ble & Tract Society of New York, Inc. v. StraLon, 536 U.S. 150
(2002). Our opinion pointed out, however, that Left Field
Media, which publishes the magazine Chicago Baseball, had
never applied for a license, for itself or any of its peddlers,
and that none of the peddlers had ever been ticketed for not
having a license. Perhaps Chicago has always treated Chicago
Baseball as a newspaper. It was therefore not clear that the
case presented a justiciable controversy.
On remand Left Field Media asked the district judge to
enjoin operation of the peddler’s-license requirement. Before
the judge acted, however, Chicago amended its ordinance to
eliminate the distinction of which Left Field Media com-
plains. The amended ordinance, which took effect on No-
vember 1, 2016, provides:
It shall be unlawful for any person to engage in the business of a
peddler without first having obtained a street peddler license
under this chapter. Provided, however, a street peddler license is
not required for selling, offering or exposing for sale, or solicit-
ing any person to purchase, only newspapers, periodicals, pam-
phlets, or other similar wriien materials on the public way.
Chicago Municipal Code §4-244-030. Whether Chicago Base-
ball is a newspaper or a magazine no longer maiers, and
Left Field Media withdrew its request for an injunction.
Still, it contended, it should receive an award of damages
to compensate for injury before the City amended the ordi-
No. 19-2904 3
nance. It identified as expenses the costs it had incurred—
after our mandate issued (June 21, 2016) and before being
notified (October 15) that the old ordinance would no longer
be enforced—in researching how the license requirement
worked and discussing licensing with its sellers. Maihew
Smerge, Left Field Media’s owner and principal employee,
added that the ordinance had caused him emotional distress.
The district court dismissed the suit for want of a justici-
able controversy. The judge did not doubt that the categories
of expenses Left Field Media had identified could in princi-
ple support an award of damages. But the judge stated that,
because all of the asserted injury occurred after Left Field
Media filed suit, any loss is not compensable.
The judge did not cite any authority for the conclusion
that injury during the course of litigation cannot support an
award of damages, and we are not aware of any. Even while
litigation continues people must mitigate their damages, of-
ten at some expense to themselves. If Left Field Media and
its vendors could neither secure licenses nor obtain relief
against the ordinance, it would go out of business. Pursuing
both avenues at once increases the chance of success.
Chicago does not defend the ground on which the dis-
trict court dismissed the suit. Instead it contends that Left
Field Media did not show any injury at all.
Let us start with the contention that the very existence of
the ordinance, and the threat it posed to his business, caused
Smerge emotional distress. Apart from doctrines that pre-
vent awards of damages for emotional distress in the ab-
sence of physical injury, see Metro-North Commuter R.R. v.
Buckley, 521 U.S. 424 (1997), there is the fact that Smerge is
4 No. 19-2904
not a litigant. The sole plaintiff is Left Field Media LLC, a
business organization. Businesses lack emotions. A business
cannot engage in reverse veil piercing to recover damages
for a loss suffered by an investor. See, e.g., In re Deist Forest
Products, Inc., 850 F.2d 340 (7th Cir. 1988); Mid-State Fertilizer
Co. v. Exchange National Bank, 877 F.2d 1333 (7th Cir. 1989).
The expenses that Left Field Media claims to have in-
curred on its own behalf are those of unspecified efforts to
learn how the licensing system worked and what peddlers
needed to do. “Unspecified” is the key word. Left Field Me-
dia does not tell us what these efforts entailed, concretely, or
what they cost. It never applied for a peddler’s license, so it
did not pay the $100 fee or incur any related expense. Its
claim appears to rest wholly on the value of Smerge’s time.
Its brief depicts Smerge as a one-man band. But if he is a full-
time employee of Left Field Media, the firm has already pur-
chased the value of his time. To recover damages, it would
need to show some marginal expense, such as overtime
wages. Nothing of the kind has been asserted, however.
Suppose instead that Smerge is not a full-time employee
and needed to divert extra hours to Left Field Media’s busi-
ness. In that event the business’s loss would be the addition-
al compensation needed to purchase this time; once again,
however, Left Field Media does not contend that it incurred
expenses of that kind. (Smerge might have suffered loss of
his own if he had to devote more time to Left Field Media’s
business and less to other endeavors. An opportunity cost is
a real cost. But we’ve already explained why Left Field Me-
dia cannot recover for Smerge’s losses.)
Left Field Media also asserts that it incurred legal fees. If
it paid a lawyer to find out how to get licenses, or to file ap-
No. 19-2904 5
plications, that could justify an award of damages. By con-
trast, the legal fees needed to pursue this litigation are not
compensable, except under a fee-shifting statute such as 42
U.S.C. §1988. Left Field Media has not filed an affidavit from
either Smerge or a lawyer explaining how much, if anything,
it paid in an effort to comply with the ordinance, as opposed
to an effort to have the ordinance held unconstitutional.
And that’s all there is. Because Left Field Media has not
offered details, it would not be possible to conclude that it
suffered even a dollar in marginal costs. A plaintiff need not
do much to support an award of damages, but it must do
something. Left Field Media has not seriously tried to show
an injury, so the district court’s judgment is
AFFIRMED.