Blue Line Publishing, Inc. v. Chicago Blackhawk Hockey Team, Inc. , 329 Ill. App. 3d 859 ( 2002 )

769 N.E.2d 97 (2002) 329 Ill. App. 3d 859 263 Ill. Dec. 895

BLUE LINE PUBLISHING, INC., an Illinois Corporation, Plaintiff-Appellant,
v.
CHICAGO BLACKHAWK HOCKEY TEAM, INC., A Delaware Corporation, Defendant-Appellee.

No. 1-00-2480.

Appellate Court of Illinois, First District, First Division.

April 22, 2002. Rehearing Denied May 31, 2002.

O'Rourke, McCloskey & Moody, Chicago (Mitchell B. Katten, Richard F. Linden and Limo Cherian), for Appellant.

Gozdecki & Del Giudice, Chicago (Eugene E. Gozdecki, Richard A. Del Giudice and Earl E. Farkas), for Appellee.

Justice McNULTY delivered the opinion of the court:

Blue Line Publishing sued the Chicago Blackhawk hockey team, alleging that defendant violated the Illinois Antitrust Act (the Act) (740 ILCS 10/1 et seq. (West 1992)) by refusing to grant plaintiff media credentials. Plaintiff claimed that the refusal harmed competition for sales of programs for the hockey games. In an earlier appeal, this court held that the complaint stated a viable claim against defendant for attempting to monopolize the market for game programs. Weinberg v. Chicago Blackhawk Hockey Team, Inc., 274 Ill.App.3d 637, 210 Ill. Dec. 860, 653 N.E.2d 1322 (1995). The trial court on remand granted summary judgment in favor of defendant, and plaintiff appeals. We affirm because the evidence shows the alleged misconduct does not affect a substantial part of the trade or commerce of this state.

Defendant plays about 40 hockey games at home each regular season, plus any playoff games for which the team qualifies. For each home game, defendant sells a program listing the lineups and providing statistics and information about the teams competing in that game.

Plaintiff first attempted to compete with defendant for sales of game programs during the 1990-91 hockey season. Despite repeated requests, defendant never granted plaintiff media credentials, and defendant denied plaintiff access to players and coaches for interviews. Plaintiff's program, called Blue Line, also provided lineups for the game and information and statistics about the competing teams. Defendant sold its program inside the building where the game took place, which was either Chicago Stadium or the United Center. Plaintiff sold its program on streets immediately surrounding the game site.

During the 1990-91 season defendant sold an average of 770 programs per game, and plaintiff sold a few hundred per game. The next season plaintiff sold between 600 and 1,500 programs at each game, averaging about 1,100 programs sold per game. Defendant's sales fell to barely 600 programs per game during the regular season, but the sales increased to 900 per game during the team's extended run through the playoffs.

Defendant's program sales remained in the hundreds per game, rarely exceeding 1,000 for any game for the next several years. Plaintiff continued printing 1,000 to 1,500 programs for each game and distributing any unsold programs to nearby outlets, for free, after the game. Plaintiff sometimes had as many as 500 programs unsold.

The price of defendant's program ranged from $3 to $5, while plaintiff gradually increased the price of Blue Line from $1 per program to $3.50 per program. While plaintiff's tax returns show modest profits from program sales, defendant's witnesses testified that defendant never turned a profit on program sales.

The parties presented cross-motions for summary judgment. The court granted defendant's motion, holding that the programs did not compete against each other in any relevant market.

On appeal, as in the trial court, plaintiff argues that it presented sufficient evidence that Blue Line competed with defendant's program, providing spectators with information designed to enhance enjoyment of the specific games for which the parties printed each program. The competition for sales took place inside and immediately outside Chicago Stadium and the United Center. According to plaintiff, defendant tried to use its monopoly over National Hockey League games in Chicago to gain a monopoly over sale of programs.

In the prior appeal this court agreed with plaintiff that it stated a cause of action for violation of section 3(3) of the Act. Weinberg, 274 Ill.App.3d at 642-43, 210 Ill. Dec. 860, 653 N.E.2d 1322. That section provides that persons violate the Act if they:

"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 * * * in such trade or commerce." 740 ILCS 10/3(3) (West 1992).

Section 11 of the Act provides:

"When the wording of this Act is identical or similar to that of a federal antitrust law, the courts of this State shall use the construction of the federal law by the federal courts as a guide in construing this Act." 740 ILCS 10/11 (West 1992).

Applying section 11, this court held that the Act bans the use of power in one market to extract monopolistic advantage in a second market. Weinberg, 274 Ill. App.3d at 640, 210 Ill. Dec. 860, 653 N.E.2d 1322.

But the Act differs in some respects from federal antitrust law. The Act specifies that it applies only to monopolies of "any substantial part of trade or commerce of this State." The Sherman Act (15 U.S.C. § 1 et seq. (1994)) has no such restriction. Neither does the Uniform State Antitrust Act, 7C U.L.A. 359 (2000).

Comments to the Act explain the restriction:

"Section 3(3) prohibits monopolization only when it exists or is attempted with reference to any ``substantial' part of trade or commerce of this State. The draftsmen recognized that elements of indivisibility must give rise to monopoly. Many towns are only large enough to support a single hotel, movie theater, or bank, etc., for example. The draftsmen did not intend to reach a situation of that type. The word ``substantial' indicates that the area in which a monopoly is unlawfully exercised must be large enough to make the existence of one or more competitors a practical possibility." 740 ILCS Ann. 10/3, Bar Committee Comments—1967, at 17-18 (Smith-Hurd 1993).

Few cases have interpreted the phrase "any substantial part of trade or commerce of this State." In Amalgamated Trust & Savings Bank v. Village of Glenview, 98 Ill.App.3d 254, 53 Ill. Dec. 426, 423 N.E.2d 1230 (1981), Glenview purchased a public water supply system. The plaintiff purchased property in the area served by the water supply system, but outside Glenview. Glenview adopted an ordinance stating that it would not provide water service to properties outside Glenview unless the owner petitioned for annexation to Glenview and conformed to Glenview's land use plans. The plaintiff sued Glenview for violation of the Act, and the trial court dismissed the complaint.

The appellate court listed several reasons for affirming the trial court's decision. The court said:

"[T]here are no facts establishing that Glenview attempted to maintain this alleged monopoly power over ``any substantial part of trade or commerce of this State,' as required by section 3. Rather, the alleged violations occurred only in a single, isolated, unincorporated area outside Glenview." Amalgamated Trust, 98 Ill.App.3d at 262-63, 53 Ill. Dec. 426, 423 N.E.2d 1230.

Thus, a relevant product market may be too small to warrant application of the Act.

We hold that the market for Blackhawk hockey game programs does not constitute a substantial part of trade or commerce of this state, within the meaning of the Act, and therefore the Act does not apply to the conduct alleged herein. The relevant market has very limited geographical scope, embracing only a few city blocks in and around Chicago Stadium and the United Center. The entire market consisted of sales averaging less than 2,000 programs per game for fewer than 50 games per year, with programs costing from $1 to $5 apiece. The sale of programs apparently had infinitesimal impact on the market for paper and other supplies used for printing the programs. While the programs provided a forum for advertisement, we cannot construe the impact on advertisement as sufficient to qualify this market as a substantial part of trade or commerce of this state. The evidence here did not show that the market for Blackhawk programs could support two separate, competing, profitable programs.

Like the market for movies in a small town, the market for Blackhawk programs is not large enough to warrant the application of the Act. Accordingly, we affirm the judgment of the trial court.

Affirmed.

COHEN, P.J., and TULLY, J., concur.