Paramount Media Group, Inc. v. Village of Bellwood , 929 F.3d 914 ( 2019 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17-1562
PARAMOUNT MEDIA GROUP, INC.,
Plaintiff-Appellant,
v.
VILLAGE OF BELLWOOD and
IMAGE MEDIA ADVERTISING, INC.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 13 C 3994 — Jorge L. Alonso, Judge.
____________________
ARGUED SEPTEMBER 28, 2018 — DECIDED JULY 16, 2019
____________________
Before RIPPLE, SYKES, and SCUDDER, Circuit Judges.
SYKES, Circuit Judge. In 2005 Paramount Media Group,
Inc., leased a parcel of highway-adjacent property in the
Village of Bellwood, Illinois, and planned to build a bill-
board on it. But Paramount never applied for a local permit.
When the Village enacted a ban on new billboard permits in
2009, Paramount lost the opportunity to build its sign.
2 No. 17-1562
Paramount later sought to take advantage of an exception
to the ban for village-owned property, offering to lease a
different parcel of highway-adjacent property directly from
the Village. But again it was foiled. The Village accepted an
offer from Image Media Advertising, Inc., one of
Paramount’s competitors. Its goal slipping away, Paramount
sued the Village and Image Media alleging First Amend-
ment, equal-protection, due-process, Sherman Act, and state-
law violations. The Village and Image Media moved for
summary judgment. The district court granted the motion
on the federal claims and relinquished supplemental juris-
diction over the state-law claims.
We affirm. Paramount lost its lease while the suit was
pending. That mooted its claim for injunctive relief from the
sign ban. The claim for damages is time-barred, except for
the alleged equal-protection violation. That claim fails
because Paramount was not similarly situated to Image
Media. And the Village and Image Media are immune from
Paramount’s antitrust claims. We need not consider whether
a market-participant exception to this immunity exists
because Paramount failed to support its antitrust claims.
I. Background
In 2005 Paramount contracted with Khushpal and
Harmeet Sodhi to lease 1133–1135 Bellwood Avenue for the
purpose of building a billboard. Paramount thought the
property, which sits alongside the high-traffic I-290 corridor
in Chicago, was an ideal location for its sign. In 2007 it
applied for and received an Illinois Department of
Transportation (“IDOT”) permit authorizing construction of
the sign on the Sodhi property.
No. 17-1562 3
But Paramount did not apply for the necessary local
permit from the Village. This lapse would come back to
haunt it. In 2009 the Village passed Ordinance 9-4, which
mandated that “no new off-site advertising sign permit will
be issued by the village.” BELLWOOD, ILL., CODE § 156.207(E)
(2009). As Bellwood officials confirmed in later meetings
with Paramount, the ordinance prevented the Village from
issuing a local permit for the Sodhi property.
In March 2012 the Village amended the ban to exempt
“village owned or controlled property.” Id. § 156.207(F)
(2012). As luck would have it, the Village owned property at
1156 Bellwood Avenue, across the street from the Sodhi
property. Seeing another opportunity to build its sign,
Paramount offered to lease the property from the Village for
$1,140,000 in increasing installments over 40 years. But
Paramount wasn’t alone. Image Media offered a lump sum
of $800,000. In October 2012 the Village accepted Image
Media’s offer without responding to Paramount. Unaware of
the Village’s decision, Paramount made a lump-sum offer in
January 2013. The Village again did not respond.
Paramount eventually learned of the Village’s contract
with Image Media. It wasn’t happy. In May 2013 it sued the
Village and Image Media, bringing six claims. Counts I and
II alleged that the billboard ban violated the First Amend-
ment and the Due Process Clause of the Fourteenth
Amendment. Count III alleged that the lease agreement
between Image Media and the Village violated the Equal
Protection Clause. Count IV alleged that the ban violated § 2
of the Sherman Act. Count V alleged that the Village and
Image Media violated § 1 of the Sherman Act through their
lease agreement. Finally, Count VI requested a declaratory
4 No. 17-1562
judgment that the Village lacked authority under Illinois law
to enter into the lease agreement with Image Media. Para-
mount sought damages for lost advertising revenue and an
injunction to prevent the Village from enforcing the bill-
board ban and its lease agreement with Image Media.
Sometime after Paramount filed its complaint, a repre-
sentative from Image Media met with Khushpal Sodhi to
discuss his lease agreement with Paramount. In October
2013 the Sodhis told Paramount that they were cancelling the
lease because Paramount failed to uphold its end of the
bargain. They entered into a lease-option agreement with
Image Media that same month. The Sodhis gave Image
Media the right to lease their land for billboard construction
in exchange for $30,000. Image Media also indemnified the
Sodhis from any legal actions arising out of the agreement.
Paramount responded by adding Count VII to its com-
plaint, which alleged that Image Media tortiously interfered
with its lease agreement by contracting with the Sodhis. It
also sued the Sodhis in state court seeking a declaratory
judgment that its lease agreement was still enforceable. The
Sodhis responded by sending a letter to the IDOT requesting
that it void Paramount’s state permit because they had
cancelled the lease. The IDOT complied and voided Para-
mount’s permit in March 2014. Paramount then amended its
state-court complaint to add the IDOT as a defendant and
request a declaratory judgment that the permit was still
valid.
Back in federal court, the district judge entered summary
judgment for the Village and Image Media. He held that
Paramount lacked standing to bring its constitutional claims
and alternatively that those claims failed on the merits. The
No. 17-1562 5
judge next rejected Paramount’s antitrust claims, holding
that the Village was immune and that Paramount had not
provided evidence that Image Media engaged in anticom-
petitive behavior. Finally, he relinquished jurisdiction over
Paramount’s state-law claims. Paramount appealed.
II. Discussion
We review a summary judgment de novo, viewing the
record in the light most favorable to Paramount. Kuttner v.
Zaruba, 819 F.3d 970, 975 (7th Cir. 2016). Summary judgment
is appropriate when “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law.” FED. R. CIV. P. 56(a).
A. First Amendment and Due Process
Paramount first argues that the Village’s ban on new bill-
board permits violates its First Amendment and substantive
due-process rights. It seeks an order enjoining the Village
from enforcing the ban and an award of damages for lost
advertising revenue.
We take the claim for injunctive relief first. The Village
and Image Media argue Paramount’s standing evaporated
when the Sodhi lease was cancelled. Because the cancellation
arose after Paramount initiated this action, the issue is really
one of mootness. A claim is moot “when the issues presented
are no longer ‘live’ or the parties lack a legally cognizable
interest in the outcome.” Chafin v. Chafin, 568 U.S. 165, 172
(2013) (quotation marks omitted).
After filing its complaint, Paramount lost its lease agree-
ment and with it any property interest within the Village. So
an injunction against the Village cannot help it. Regardless of
6 No. 17-1562
the Village’s ordinances, Paramount cannot build a billboard
on the Sodhi property.
Paramount forcefully contends that the Sodhis had no
right to cancel the lease, but this argument is of no moment.
If a breach occurred, Paramount would be almost certainly
entitled to damages rather than a reinstatement of the lease.
See Koehler v. Packer Grp., Inc., 53 N.E.3d 218, 245 (Ill. App. Ct.
2016) (“Illinois courts have consistently held that money
damages are the appropriate remedy for breach of con-
tract.”) (quotation marks omitted). The continued existence
of the sign ban doesn’t affect this remedy.
Likewise, Paramount’s claim that Image Media induced
the alleged breach is misplaced. Regardless of the propriety
of an opposing party’s actions, mootness is part of
Article III’s “irreducible constitutional minimum.” Lujan v.
Defs. of Wildlife, 504 U.S. 555, 560 (1992). An “actual contro-
versy must be extant at all stages of review.” Alvarez v. Smith,
558 U.S. 87, 92 (2009) (quotation marks omitted). Because
Paramount lost its interest in the Sodhi property, its claim for
injunctive relief is moot.
The damages claim faces a statute-of-limitations problem.
The parties largely agree that these claims borrow Illinois’s
two-year limit for personal-injury actions. 1 See Johnson v.
Winstead, 900 F.3d 428, 434 (7th Cir. 2018). Their dispute
hinges on when Paramount’s claims accrued; federal law
governs that question. Id. A claim accrues when “the consti-
tutional violation is complete and the plaintiff has a present
1 Paramount briefly asserts that facial First Amendment challenges can
never be time barred. Its argument is underdeveloped and bereft of any
analysis. We do not address this theory.
No. 17-1562 7
cause of action.” Id. In other words, a “cause of action ac-
crues, and the statute of limitation commences to run, when
the wrongful act or omission results in damages.” Id. (quota-
tion marks omitted).
Paramount’s claims are untimely under this general ac-
crual rule. When the Village adopted the sign ban in
February 2009, the claimed constitutional tort was complete.
Paramount, which had a lease and IDOT permit, could not
build its sign. And yet it waited until May 2013 to sue, well
beyond Illinois’s two-year statute of limitations.
Paramount cannot save its claims by bootstrapping them
to the 2012 amendment. The amendment did not, as
Paramount argues, repeal and reenact the ban. By its own
terms, the amendment created an exemption only for
village-owned property. It had nothing to do with
Paramount’s injury. Paramount’s First Amendment and due-
process claims accrued in 2009, so they are untimely.
B. Equal Protection
Paramount’s equal-protection claim stands on different
ground from its other constitutional claims. This claim
challenges the Village’s decision to lease its property to
Image Media. Because this lease agreement occurred within
two years of its lawsuit and Paramount still has an interest in
damages, this claim does not suffer from the same procedur-
al infirmities as the First Amendment and due-process
challenges.
Paramount raises a “class-of-one” equal-protection claim.
The core idea behind a class-of-one claim is that the equal-
protection guarantee “protect[s] individuals against purely
arbitrary government classifications, even when a classifica-
8 No. 17-1562
tion consists of singling out just one person for different
treatment for arbitrary and irrational purposes.” Geinosky v.
City of Chicago, 675 F.3d 743, 747 (7th Cir. 2012). To prevail,
Paramount must establish that (1) it was “intentionally
treated differently from others similarly situated” and
(2) “there is no rational basis for the difference in treatment.”
Id. (quotation marks omitted).
The first question—and the only one we reach—is
whether Paramount and Image Media were similarly situat-
ed. To meet this requirement, they must be “prima facie
identical in all relevant respects.” D.S. v. E. Porter Cty. Sch.
Corp., 799 F.3d 793, 799 (7th Cir. 2015) (quotation marks
omitted). Here, at least one major difference separates
Paramount and Image Media: their offers to the Village.
Paramount offered $1,140,000 in increasing installments over
40 years while Image Media offered a lump sum of $800,000.
No reasonable jury could look at these offers and conclude
that the two companies were similarly situated. No further
analysis is needed. See Monarch Beverage Co. v. Cook, 861 F.3d
678, 682 (7th Cir. 2017).
C. The Sherman Act
Paramount raises two antitrust claims. It first asserts that
the Village and Image Media violated § 1 of the Sherman Act
by forming an unlawful conspiracy in restraint of trade.
Next, it contends that the Village monopolized the market
for billboards within its borders, violating § 2 of the Act.
We note as a threshold matter that under Parker v. Brown,
317 U.S. 341 (1943), the Village enjoys antitrust immunity.
Municipalities receive immunity from federal antitrust laws
if they “demonstrate that their anticompetitive activities
No. 17-1562 9
were authorized by the State pursuant to state policy to
displace competition with regulation or monopoly public
service.” Town of Hallie v. City of Eau Claire, 471 U.S. 34, 39
(1985) (quotation marks omitted). Illinois municipalities can
displace competition with activity that is “expressly or by
necessary implication authorized by Illinois law” or “within
traditional areas of local governmental activity.” 50 ILL.
COMP. STAT. 35/1(a) (2014).
The Illinois Supreme Court has held that billboard regu-
lation is a traditional area of local governmental activity for
home-rule municipalities like the Village. Scadron v. City of
Des Plaines, 606 N.E.2d 1154, 1159, 1164–65 (Ill. 1992). And
state law allows municipalities to lease property. 65 ILL.
COMP. STAT. 5/11-76-1 (2005). Illinois has thus immunized the
Village from Paramount’s antitrust claims. And Paramount
cannot hold Image Media liable by alleging that it conspired
with a Parker-protected entity. See City of Columbia v. Omni
Outdoor Advert., Inc., 499 U.S. 365, 382–83 (1991).
Paramount’s sole challenge to the Village’s Parker immun-
ity rests on the so-called market-participant exception. The
Supreme Court has observed that a “possible” exception to
Parker immunity might exist when municipalities act as
market participants. Id. at 379. We haven’t addressed wheth-
er this exemption exists, and we don’t need to here.
Paramount has failed to bring proper § 1 or § 2 claims.
Section 1 of the Sherman Act prohibits “[e]very contract,
combination in the form of trust or otherwise, or conspiracy,
in restraint of trade or commerce.” 15 U.S.C. § 1. While a
narrow class of restraints are per se unreasonable, most fall
under the “rule of reason.” Ohio v. Am. Express Co., 138 S. Ct.
2274, 2283–84 (2018). To prevail under the rule of reason in a
10 No. 17-1562
§ 1 case, Paramount must establish “(1) a contract, combina-
tion or conspiracy; (2) a resultant unreasonable restraint of
trade in a relevant market; and (3) an accompanying injury.”
Deppe v. NCAA, 893 F.3d 498, 501 (7th Cir. 2018) (quotation
marks and alterations omitted).
Paramount doesn’t offer proof of either anticompetitive
effects or a conspiracy to restrain trade between Image
Media and the Village. It instead complains that the Village
and Image Media’s conduct harmed it individually. This
allegation is insufficient to support a § 1 claim. See NYNEX
Corp. v. Discon, Inc., 525 U.S. 128, 135 (1998) (holding that a
successful § 1 claim “must allege and prove harm, not just to
a single competitor, but to the competitive process”).
Paramount’s § 2 claim fails for similar reasons. Section 2
of the Sherman Act makes it unlawful to “monopolize, or
attempt to monopolize, … any part of the trade or com-
merce.” 15 U.S.C. § 2. Paramount appears to raise an actual
monopoly claim, which requires that it establish “(1) the
possession of monopoly power in the relevant market and
(2) the willful acquisition or maintenance of that power as
distinguished from growth or development as a conse-
quence of a superior product, business acumen, or historic
accident.” Endsley v. City of Chicago, 230 F.3d 276, 282 (7th
Cir. 2000) (quotation marks omitted).
Paramount has not offered sufficient evidence to support
its § 2 claim. We start and end with the first element. A
plaintiff can establish that the defendant has monopoly
power in a relevant market either by providing “direct
evidence of anticompetitive effects” or “proving relevant
product and geographic markets and … showing that the
defendant’s share exceeds whatever threshold is important
No. 17-1562 11
for the practice in the case.” Toys “R” Us, Inc. v. FTC, 221 F.3d
928, 937 (7th Cir. 2000). Paramount attempts to prove its
claim through the second approach. Both sides agree that the
Village is the only entity able to lease billboards within its
boundaries, so the question turns on defining the relevant
market.
Paramount asserts that the relevant market is billboard
construction within the Village’s municipal limits. It claims
that this geographic boundary is “self-evident” because the
ordinance eliminated competition in the village. This skeletal
reasoning isn’t enough. “[A] market is defined to aid in
identifying any ability to raise price by curtailing output.”
Isr. Travel Advisory Serv., Inc. v. Isr. Identity Tours, Inc., 61 F.3d
1250, 1252 (7th Cir. 1995). Municipal boundaries cannot
define the relevant market without “evidence to prove that
there are any legal or economic barriers to competition from
areas immediately adjacent” to them. Mullis v. Arco Petroleum
Corp., 502 F.2d 290, 296 (7th Cir. 1974). Paramount offers no
evidence that the Village could raise prices for billboard
leases in spite of competition from landowners in neighbor-
ing Chicago suburbs. Its failure to do so defeats its claim. 2
AFFIRMED
2 Because none of Paramount’s federal claims remain, the judge did not
abuse his discretion by relinquishing jurisdiction over the state-law
claims. See Bianchi v. McQueen, 818 F.3d 309, 323 n.7 (7th Cir. 2016).