Nat'l Experiential, LLC v. City of Chi.

590 F.Supp.3d 1116

NATIONAL EXPERIENTIAL, LLC, Plaintiff,

v.CITY OF CHICAGO, MB Real Estate Services, Inc., Chicago Convention and Tourism Bureau, Inc. d/b/a Chicago Sports Commission, and Kara Bachman, Defendants.

Case No. 21-cv-810

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

Signed March 9, 2022

Edward Roy Moor, Moor Law Office, P.C., Chicago, IL, for Plaintiff.

Francis X. Liesman, III, Ropes & Gray LLP, Chicago, IL, Oscar Pina, Andrew S. Mine, Amie Leann Medley, City of Chicago, Department of Law, Chicago, IL, for Defendant City of Chicago.

Daniel Laurence Polsby, Max Gerald Wessels, Paige Moray Neel, Clausen Miller P.C., Chicago, IL, for Defendant MB Real Estate Services, Inc.

Langdon David Neal, Richard Freund Friedman, Neal & Leroy, LLC, Chicago, IL, for Defendants Chicago Convention and Tourism Bureau, Inc., Kara Bachman.

MEMORANDUM OPINION AND ORDER

Steven C. Seeger, United States District Judge

In 2020, the City of Chicago hosted the NBA All-Star Game. The festivities attracted a lot of attention, and a lot of business. Plaintiff National Experiential, a marketing and advertising agency, planned to add to the atmosphere by projecting a Nike light show onto two large skyscrapers. The display would feature a video of the classic dunk by Michael Jordan during the 1988 slam-dunk contest, plus the Nike "Jumpman" logo.

National Experiential signed a contract with the City, giving National Experiential a license to project images from Millennium Park. But the License Agreement included a number of important caveats. The contract required National Experiential to get all necessary permits. And it gave the City the express contractual right to cancel at any time, for any reason.

Two days before the display, National Experiential received an email from MB Real Estate Services, the manager of Millennium Park. MB declared that the project was "not approved" because National Experiential didn't have the necessary permits. That declaration led to a mad scramble by National Experiential, who tried to convince the City to let the plan go forward.

On the day of the display, National Experiential kept at it, trying to persuade the City that the display was art (without a commercial message). It didn't work. Out of the blue, National Experiential received an email from a representative of the Chicago Sports Convention – a private actor – declaring that the anticipated display was not approved. At that point, the City formally pulled the plug on the light show.

Without approval from the City, Nike told National Experiential that the light show was a no-go. But when night fell, the buildings were not dark. All along, the Chicago Sports Commission had wanted one of the skyscrapers to be illuminated in red, the color of the Chicago Bulls. And in the end, the Chicago Sports Commission got what it wanted.

National Experiential responded by filing suit against the City, the Chicago Sports Commission, its director (Kara Bachman), and MB Real Estate Services (the manager of Millennium Park). National Experiential advanced six claims, including free speech claims as well as claims alleging breach of contract and tortious interference with contract.

Defendants filed motions to dismiss. For the reasons stated below, the motions to dismiss are granted. But the Court grants Plaintiff leave to amend.

Background

At the motion to dismiss stage, the Court must accept as true the well-pleaded allegations of the complaint. See Lett v. City of Chicago , 946 F.3d 398, 399 (7th Cir. 2020). The Court "offer[s] no opinion on the ultimate merits because further development of the record may cast the facts in a light different from the complaint." Savory v. Cannon , 947 F.3d 409, 412 (7th Cir. 2020).

I. The Project

National Experiential is an advertising and marketing agency. See Cplt., at ¶ 8 (Dckt. No. 1). It draws attention to its clients and heightens brand awareness through laser projections, custom digital installations, and street level displays. Id.

In December 2019, National Experiential landed a contract with MacDonald Media¹ to provide light projections in Chicago during the NBA's 2020 All-Star weekend. Id. at ¶ 9. Under that contract, National Experiential agreed to arrange and perform video projections on the Prudential Building and the Aon Center on the nights of February 14 and 15, 2020. Id.

For out-of-towners, the Prudential Building and the Aon Center are large skyscrapers on the north end of Millennium Park in downtown Chicago. They are prominent fixtures in Chicago because they tower over the north end of green, wide-open space consisting of Millennium Park and (to the south) Grant Park. They're especially visible from Lake Shore Drive and from Michigan Avenue, and they're sometimes illuminated for special events. The Prudential Building is a wider, shorter building, and the Aon Center is a narrower, taller building (one of the tallest in Chicago) to the east of the Prudential Building (i.e. , closer to Lake Michigan).

The light show was supposed to project Nike imagery. An artistic rendering of the anticipated display – including pictures and link to the video of the proposed light show – is in the record. See Def. City of Chicago's Mtn. to Dismiss, at 5 (Dckt. No. 34). On the Prudential Building, the display would include a video of Michael Jordan's iconic, gravity-defying dunk – after jumping from the free throw line – during the slam-dunk contest at the 1988 All-Star Game. On the Aon Center, the display would feature the Nike "Jumpman" logo. Id. ; Pl.’s Resp. to Defs.’ Mtns. to Dismiss, at 5 (Dckt. No. 44).

National Experiential's plan was to project the light show from Millennium Park (public property) onto the Prudential Building and the Aon Center (private property). The projection equipment would be in the park, and cast the images onto the buildings.

As one can imagine, that type of project comes with a lot of logistics. So National Experiential got to work. It contacted the City of Chicago Department of Cultural Affairs and Special Events ("DCASE"). It reached out to the operators of the Prudential Building and the Aon Center. And it touched base with MB Real Estate Services ("MB"), which manages Millennium Park. See Cplt., at ¶ 10 (Dckt. No. 1).

On December 10, National Experiential received an email from Jonathan Scott, MB's Private Events Manager. Id. Scott provided an estimate for the cost of using space in the park for the equipment. Id.

And most importantly, Scott addressed whether National Experiential needed to jump through any hoops with the City. Scott wrote that he had "checked with the city and they feel as long as you have permission from the buildings, there shouldn't be a Special Event Permit Application needed but we will need to loop in the Mayor's Office, 1st District and 42nd Ward for awareness." Id. Scott said that he would send a letter with the details of the project to the City "so no surprises pop up." Id.

On January 28, 2020, a little more than two weeks before the big game, National Experiential emailed Scott and proposed a meeting to go over the details. Id. at ¶ 11. Scott, in turn, responded that he needed a letter with the "description, dates and times of what you are producing," as well as "approvals from Prudential and AON." Id. He promised to send that letter to the City "so no surprises pop up." Id.

In the ensuing back-and-forth by email, National Experiential gave more information about the project, and Scott requested more information, too. Id. at ¶ 12. Scott asked for "a couple of paragraphs describing what you are actually doing / projecting on the two buildings, the dates and times the light show will be occurring." Id. Scott said that he would "send this on to the city for approval." Id.

On January 29, National Experiential sent Scott a letter with a description of the proposed project, including "links to videos of the projections that would be used." Id. at ¶ 14. Scott, in turn, sent that information to the City. Id.

MB gave National Experiential an update on February 3, less than two weeks before the anticipated light show. MB shared that it had "just spoke[n] to the City of Chicago to make sure that the Alderman and DCASE are aware that Nike's Light Promo for the NBA is taking place." Id. at ¶ 15. He asked for written confirmation that the Prudential Building and the Aon Center had signed off on the project. National Experiential promptly sent MB a copy of the written approval from the two buildings. Id. at ¶¶ 16, 18.

II. The Contract

A few days later, National Experiential signed the License Agreement with the City for the proposed light show. Id. at ¶ 17; see also License Agreement (Dckt. No. 34-1, at 4 of 17). The City granted National Experiential a license "to use the spaces in Millennium Park designated in Paragraph 2 during the periods set forth herein [i.e. , February 14–15, 2020] for the following performance/event and for no other purpose: Nike Light Promo for NBA All-Star Game ." See License Agreement, at ¶ 1 (emphasis in original). The contract required National Experiential to pay an event fee of $105,495. Id. at ¶ 4.

The contract did not say that National Experiential did not need a permit. And the contract did not purport to grant a permit, either. Quite the opposite. The License Agreement called attention to the fact that National Experiential might need a permit, if local ordinances required a permit for this particular project.

Specifically, paragraph eight of the License Agreement incorporated by reference the terms of the "General Conditions," meaning the exhibit attached to the contract. Id. at ¶ 8. And paragraph eleven of the General Conditions flagged the possible need for a permit: "Licensee shall obtain and pay for all necessary permits and licenses, if any, required for the entertainment or activity being presented ...." See General Conditions, at ¶ 11 (Dckt. No. 34-1, at 8 of 17).

The License Agreement also gave the City wide latitude to cancel the...