Free Markets and Free Speech: Understanding the Limits of the Noerr-Pennington Doctrine
Based in First Amendment principles, the Noerr-Pennington doctrine immunizes parties petitioning the government from antitrust liability, even when such petitioning may be considered anticompetitive. Within the doctrine exists a narrower “sham exception” which eliminates Noerr-Pennington antitrust immunity when petitions are merely shams meant to interfere with a competitor’s business. The Supreme Court has examined the sham exception in two cases which have produced differing standards for when and how to apply it. As a result, circuit courts have had to grapple with this uncertainty and a circuit split has developed as they have disagreed on the proper approach to applying the sham exception.
This Comment proposes that the Supreme Court revisit its Noerr-Pennington jurisprudence and clarify the scope under which immunity shall attach. Furthermore, this Comment advocates for the adoption of a new “holistic evaluation” rule akin to the rule of reason in which patterns of lawsuits are evaluated, not on their individual chance of success, but collectively based on intent. As part of this inquiry, this Comment argues that courts should analyze whether the legitimate gains a party stands to win from such lawsuits (i.e. damages) is less than the anticompetitive effects of bringing those lawsuits (i.e. litigation costs and attorney fees) such that the lawsuits, collectively, should not enjoy Noerr-Pennington antitrust immunity.
In recent years, many Americans feel as though the influence powerful private interests enjoy over the American political process has peaked.1
Tim Wu, Antitrust & Corruption: Overruling Noerr (Columbia L. Sch. Pub. L. Working Paper, Paper No. 14-663, 2020), https://perma.cc/UG9Q-JXC3.
Greg Coleridge, The Corporate Weaponization of Government, Common Dreams (Feb. 15, 2023), https://perma.cc/L8TV-7G5J.
Richard Hofstader, The Age Of Reform 229 (1955); see also Lee Drutman, How Corporate Lobbyists Conquered American Democracy, The Atlantic (Apr. 20, 2015), https://perma.cc/Z899-UBAH.
Drutman, supra note 3.
Gary Minda, Interest Groups, Political Freedom, and Antitrust: A Modern Reassessment of the Noerr-Pennington Doctrine, 41 Hastings L.J. 905, 907–08 (1990).
Id. at 908.
Id.
Antitrust laws have existed in the United States for over a century with the stated purpose of promoting competition. Much of antitrust litigation is centered around mergers, monopolies, and collusion. A lesser-known focused area of antitrust is the Noerr-Pennington doctrine. The Noerr-Pennington doctrine developed through a handful of seminal Supreme Court cases that demarcated the extent to which attempts to influence the government are exempt from the antitrust laws.8
Daniel R. Fischel, Antitrust Liability for Attempts to Influence Government Action: The Basis and Limits of the Noerr-Pennington Doctrine, 45 U. Chi. L. Rev. 80 (1977).
Fed. Trade Comm’n, Enforcement Perspectives on the Noerr-Pennington Doctrine, 18 (2006), https://perma.cc/U36K-CEQS (quoting Eastern R.R. Presidents Conf. v. Noerr Motor Freight, Inc., 365 U.S. 127, 140 (1961)).
Douglas Michael Ely, The “Noerr-Pennington” Doctrine and the Petitioning of Foreign Governments, 84 Colum. L. Rev. 1343, 1343 (1984).
See discussion infra Section IV on the pharmaceuticals industry.
Much turns on what “legitimate” actually means within the doctrine. Courts have taken a varied approach when dealing with conduct used to influence the legislative and executive branches and when the same conduct is applied to the judicial arena. The immunity provided by the doctrine is cabined by the existence of the sham litigation exception, which as its name suggests applies only to lawsuits. The sham exception negates Noerr-Pennington immunity for antitrust liability when a party uses political activity as a “sham” to solely harm a competitor.12
Daniel J. Davis, The Fraud Exception to the “Noerr-Pennington” Doctrine in Judicial and Administrative Proceedings, 60 U. Chi. L. Rev. 325, 330 (2001).
California Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 513 (1972).
The circuit split arose following the Court’s decision in Professional Real Estate Investors Inc. v. Columbia Pictures Industries, Inc. (PRE),14
Pro. Real Estate Invs. Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49 (1993).
Dylan Carson & Scott Russell, Circuits Reinforce Split over When Noerr-Pennington Shields Serial Litigants, The Antitrust Source, Feb. 2021, at 5.
The Ninth Circuit, in USS-POSCO Industries v. Contra Costa County Building & Construction Trades Council, AFL-CIO (USS-Posco),16
USS-POSCO Indus. v. Contra Costa County Bldg. & Constr. Trades Council, AFL-CIO, 31 F.3d 800, 804 (9th Cir. 1994).
Carson & Russell, supra note 11, at 6 (quoting USS-POSCO, 31 F.3d at 804).
See PrimeTime 24 Joint Venture v. NBC, Inc., 219 F.3d 92 (2d Cir. 2000); Waugh Chapel South, LLC v. United Food & Commercial Workers Union, 27, 728 F.3d 354 (4th Cir. 2013); Hanover 3201 Realty, LLC v. Village Supermarkets, Inc., 806 F.3d 162 (3d Cir. 2015); CSMN Inv., LLC v. Cordillera Metro. Dist., 956 F.3d 1276 (10th Cir. 2020).
Meanwhile, the First and Seventh Circuits have split with the majority and endorsed the view that the PRE test applies to each case within a series of petitions.19
See Puerto Rico Tel. Co. v. San Juan Cable LLC, 874 F.3d 767 (1st Cir. 2017); U.S. Futures Exch., LLC v. Bd. of Trade of the City of Chicago, 953 F.3d 955 (7th Cir. 2020).
Seventh Circuit Deepens the Circuit Split on the “Sham Exception” to Noerr-Pennington, Hogan Lovells Publications (Mar. 31, 2020), https://perma.cc/2GTH-YQKW.
This Comment will argue that the scope of Noerr-Pennington immunity is too broad and should be limited so as to not immunize lawsuits in which the sole intention is to harm competitors. Part II will address the purpose and origins of the Noerr-Pennington doctrine. Part III will explore the cases that have resulted in a circuit split on how to apply the sham exception to lawsuits. Finally, Part IV will propose, as a resolution to the circuit split, that the Supreme Court should adopt the Fourth Circuit’s approach, wherein California Motor applies to a pattern of lawsuits and PRE’s test to a single lawsuit, while also introducing a holistic evaluation of the party in question’s action in the legislative and administrative arenas. As part of this inquiry, this Comment proposes that courts evaluate whether the legitimate gains from successful lawsuits outweigh the collective anticompetitive effects of the lawsuits such that parties should be entitled to Noerr-Pennington immunity for potential antitrust violations.
“The principal federal antitrust laws, the Sherman Act of 1890 and the Clayton Act of 1914, are broadly worded, and they give the federal courts and antitrust enforcement agencies wide leeway to develop a federal ‘common law’ of antitrust regulation.”21
Thomas A. Piraino Jr., Reconciling the Harvard and Chicago Schools: A New Antitrust Approach for the 21st Century, 82 Ind. L.J. 345, 346 (2007).
Id.
Legislative History of the Federal Antitrust Laws and Related Statutes 7 (Earl W. Kintner, ed., 1978)
15 U.S.C. § 1.
15 U.S.C. § 2.
U.S. Const. amend. I.
Earl W. Kinter & Joseph P. Bauer, Antitrust Exemptions for Private Requests for Governmental Action: A Critical Analysis of the Noerr-Pennington Doctrine, 17 U.C. Davis L. Rev. 549, 550 (1984).
Noerr-Pennington jurisprudence is derived from both the antitrust laws and the First Amendment laws. The doctrine evolved from two Supreme Court cases, Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc.28
365 U.S. 127 (1961).
381 U.S. 657 (1965).
Noerr, 365 U.S. at 143.
A unanimous Supreme Court decision, Noerr was the first instance in which the court pronounced that efforts to petition the government were immune from antitrust liability. In Noerr, an organization of railroad companies joined together and directed a publicity campaign against the trucking industry using a public relations firm.31
Id. at 129.
Id.
Id.
Id. at 130.
The truckers filed an antitrust action against the railroads, claiming that they had conspired to restrain trade in, and monopolize, the long-distance freight business in violation of both section 1 and section 2 of the Sherman Act.35
Lawrence D. Bradley, Noerr-Pennington Immunity From Antitrust Liability Under Clipper Exxpress v. Rocky Mountain Motor Tariff Bureau Inc.: Replacing the Sham Exception With a Constitutional Analysis, 69 Cornell L. Rev. 1305, 1307 (1984).
Noerr, 365 U.S. at 132.
Id. at 135.
Id. at 136.
Id.
The Court justified the “immunity” using four arguments, which have since been heavily criticized.40
Fischel, supra note 8, at 83. See also Wu, supra note 1, at 4.
Noerr, 365 U.S. at 136–37.
Fischel, supra note 8, at 83 (quoting Noerr, 365 U.S. at 137).
Id.
Id.
Id. (internal quotations omitted).
The Noerr Court did recognize that there may be instances in which petitioning was merely a ruse for anticompetitive activity. In such cases, Justice Black cautioned that the immunity set forth by Noerr would not automatically extend to any activity that may be labelled as “petitioning.”46
Bradley, supra note 35, at 1308.
Id. (quoting Noerr, 365 U.S. at 144).
Id.
Four years after Noerr came United Mine Workers v. Pennington,49
381 U.S. 657 (1965).
Fischel, supra note 8, at 85.
James D. Hurwitz, Abuse of Governmental Processes, The First Amendment, and the Boundaries of Noerr, 16 J. Reprints Antitrust L. & Econ. 771, 788 (1986).
Kinter & Bauer, supra note 27, at 556.
Bradley, supra note 35, at 1308.
Kinter & Bauer, supra note 27, at 556.
United Mine Workers v. Pennington, 381 U.S. 657, 670 (1965) (“Noerr shields from the Sherman Act a concerted effort to influence public officials regardless of intent or purpose.”).
Id.
Lisa Orucevic, A Machete for the Patent Thicket: Using Noerr-Pennington Doctrine’s Sham Exception to Challenge Abusive Patent Tactics by Pharmaceutical Companies, 75 Vand. L. Rev. 277, 297 n.35 (2022).
The reasoning that underpins Noerr-Pennington has been often criticized; its skeptics argue that the reasoning is unpersuasive, at times hypocritical, and not historically accurate to Court precedent.58
For further discussion, see Fischel, supra note 8; Wu, supra note 1; Jerrold L. Walden, More About Noerr’-Lobbying, Antitrust and the Right to Petition, 14 UCLA L. Rev. 1211 (1967); Karen Roche, Deference or Destruction? Reining in the “Noerr-Pennington” and State Action Doctrines, 45 Loy. L.A. L. Rev. 1295, 1318 (2012).
Walden, supra note 58, at 1247.
Id. at 1248; see also Minda, supra note 5, at 909 (“The Supreme Court has immunized the vast majority of government-petitioning cases from antitrust attack, even when the petitioning is for the purpose of restraining trade and even if the restraint causes an antitrust injury.”).
Minda, supra note 5, at 910.
Id. at 910 n.12 (quoting Robert Bork, The Antitrust Paradox: A Policy At War With Itself 350 (1978)).
Stephen Calkins, Developments in Antitrust and the First Amendment: The Disaggregation of Noerr, 57 Antitrust L.J. 327, 329 (1988).
The Pennington opinion too has faced criticism for its unclear language. The Pennington opinion seemingly extended immunity to “purely commercial functions.”64
Fischel, supra note 8, at 85; see also Michael W. Bien, Litigation as An Antitrust Violation: Conflict between the First Amendment and the Sherman Act, 16 U.S.F. L. Rev. 41, 51 (1989).
Id.
Id.
370 U.S. 690 (1962).
Fischel, supra note 8, at 86 (quoting Cont’l Ore Co. v. Union Carbide & Carbon Corp, 370 U.S. 690, 707 (1962)).
Kinter & Bauer, supra note 27, at 556.
The Court did not mention the sham exception in Pennington. Still some have gone as far as to argue that “[t]he statement that concerted efforts to influence public officials are ‘not illegal, either standing alone or as part of a broader scheme itself violative of the Sherman Act,’ simply cannot be reconciled with the sham exception.”70
Bien, supra note 64, at 51 (quoting United Mine Workers v. Pennington, 381 U.S. 657, 670 (1965)).
Fischel, supra note 8, at 86.
The scope of Noerr-Pennington expanded again under California Motor Transport Co. v. Trucking Unlimited,72
404 U.S. 508 (1972).
Id. at 510 (“The [Noerr-Pennington doctrine] governs the approach of citizens or groups of them to administrative agencies (which are both creatures of the legislature, and arms of the executive) and to courts, the third branch of Government. Certainly the right to petition extends to all departments of the Government.”).
Fischel, supra note 8, at 86.
Kinter & Bauer, supra note 27, at 557 (quoting Cal. Motor, 404 U.S. at 511).
Cal. Motor, 404 U.S. at 512.
The complaint alleged that the aim and purpose of the defendant’s conspiracy was to put competitors such as plaintiffs out of business, weaken competition, destroy, weaken, and eliminate competitors and future competitors, and to monopolize the highway common carriage business in California and elsewhere.77
Id. at 511.
Id. at 512. See also Kinter & Bauer, supra note 27, at 557.
The nature of the views pressed does not, of course, determine whether First Amendment rights may be invoked; but they may bear upon a purpose to deprive the competitors of meaningful access to the agencies and courts. As stated in the opinion concurring in the judgment, such a purpose or intent, if shown, would be ‘to discourage and ultimately to prevent the respondents from invoking’ the processes of the administrative agencies and courts and thus fall within the exception to Noerr.79
79Cal. Motor, 404 U.S. at 512.
Justice Douglas, writing for the Court, went on to dismiss the idea that Noerr-Pennington immunity did not apply to attempts to influence adjudication noting:80
Fischel, supra note 8, at 87.
[I]t would be destructive of rights of association and of petition to hold that groups with common interests may not, without violating the antitrust laws, use the channels and procedures of state and federal agencies and courts to advocate their causes and points of view respecting resolution of their business and economic interests vis-à-vis their competitors.81
81Cal. Motor, 404 U.S. at 510–11.
The opinion further stated that certain methods of influencing decision-making that may be sanctioned in the political arena of legislative and executive activity “would not be immunized from antitrust scrutiny when undertaken in the adjudicatory setting of administrative or judicial proceedings.”82
Kinter & Bauer, supra note 27, at 558.
371 U.S. 415, 444 (1963).
Cal. Motor, 404 U.S. at 515.
Id. at 517.
Id. at 517 n.4.
Finally, Justice Douglas acknowledged the difficulty that lay in discerning whether a party’s litigation efforts constituted an abuse of process from which antitrust liability may attach.87
Bradley, supra note 35, at 1310.
Id. (quoting Cal. Motor, 404 U.S. at 513) (emphasis added).
Cal. Motor, 404 U.S. at 513.
Id. at 515. The actions the Court referred to was “[a] combination of entrepreneurs to harass and deter their competitors from having ‘free and unlimited access’ to the agencies and courts to defeat that right by massive, concerted, and purposeful activities of the group [which] are ways of building up one empire and destroying another.”
The result of California Motor was the development of a test, however unclear it may be, for determining what constituted a sham. Most significantly, the Court made clear that even suits that were genuine efforts to influence adjudicators could still, as a pattern, be determined as sham.91
Eliner Elhauge, Making Sense of Antitrust Petitioning Immunity, 80 Cal. L. Rev. 1177, 1184 (1992).
Id.
Id.
The Court further clarified that certain activities that may be considered a sham in the adjudicative process would not necessarily be such in the political processes.94
Id. at 1185.
Id. at 1185.
Roche, supra note 58, at 1306.
Hurwitz, supra note 51, at 94.
The scope of how courts were to apply the sham exception remained unclear following California Motor. The Supreme Court attempted to clarify the standard through a handful of cases, culminating with the test that emerged from PRE.98
Pro. Real Estate Invs. Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49 (1993).
486 U.S. 492 (1988).
Roche, supra note 58, at 1307.
Allied Tube & Conduit Corp. v. Indian Head, Inc., 486 U.S. 492, 508 n.10 (1988).
Minda, supra note 5, at 977.
Id. at 976.
499 U.S. 365 (1991).
Gary Myers, Antitrust and First Amendment Implications of Professional Real Estate Investors, 51 Wash. & Lee L. Rev. 1199, 1212 (1994) (quoting Omni, 499 U.S. at 380).
A classic example is the filing of frivolous objections to the license applications of a competitor, with no expectation of achieving denial of the license but simply in order to impose expense and delay. A ‘sham’ situation involves a defendant whose activities are ‘not genuinely aimed at procuring favorable government action’ at all, not one ‘who genuinely seeks to achieve is governmental result, but does so through improper means.’106
106Id. (quoting Omni, 499 U.S. at 380).
Finally, in 1993, the Court clarified the scope of the sham exception in PRE, which involved a single lawsuit brought by motion picture owners for copyright infringement against hotel owners.107
Orucevic, supra note 57, at 300.
Pro. Real Estate Invs. Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49, 51–52 (1993).
Id. at 52.
Id. at 53.
Id.
Id.
Id. at 54 (internal quotes omitted).
Justice Thomas, writing for the majority, started with a discussion of the history of the sham exception, and noted that the California Motor decision left unanswered the question at issue in PRE–whether litigation may be sham merely because a subjective expectation of success does not motivate the litigant.114
Id. at 57.
Id. (emphasis added).
Id. at 58. Whether Cal. Motor and the cases that followed actually stand for this proposition is dubious.
Id. at 59.
Id. at 60 (“In sum, fidelity to precedent compels us to reject a purely subjective definition of ‘sham.’ The sham exception so construed would undermine, if not vitiate, Noerr. And despite whatever ‘superficial certainty’ it might provide, a subjective standard would utterly fail to supply ‘real intelligible guidance.’”).
The opinion outlined a two-part definition or test for determining “sham” litigation.
First, the lawsuit must be objectively baseless in the sense that no reasonable litigant could realistically expect success on the merits. If an objective litigant could conclude that the suit is reasonably calculated to elicit a favorable outcome, the suit is immunized under Noerr, and an antitrust claim premised on the sham exception must fail. Only if challenged litigation is objectively meritless may a court examine the litigant’s subjective motivation. Under this second part of our definition of sham, the court should focus on whether the baseless lawsuit conceals an attempt to interfere directly with the business relationships of a competitor, through the use of the governmental process – as opposed to the outcome of that process – as an anticompetitive weapon.119
Id. at 60–61 (emphasis added) (citation omitted).
Put more simply, the two-part tests ask first, whether any reasonable litigant could expect to succeed on the merits. If so, the party obtains Noerr-Pennington immunity. Only after concluding there is no reasonable chance of success on the merits can the courts then ask whether the litigant used the governmental process as an anticompetitive weapon. Under PRE, the two-step test creates a higher bar for successfully invoking the sham exception.
Justice Thomas’s opinion focused on objective baselessness and equated it to probable cause.120
Nicholas E. Hakun, Strategic Litigation and Antitrust Petitioning Immunity, 12 U.C. Irvine L. Rev. 867, 876 (2022).
PRE, 508 U.S. at 62–63.
Id. at 62.
Id. at 63.
Ultimately, the Court held that Columbia’s suit was not baseless as it had probable cause and was therefore subject to antitrust immunity.124
Id. at 63–64.
Id. at 67 (Stevens, J., concurring).
Hakun, supra 120, at 877.
PRE, 508 U.S. at 73 (Stevens, J., concurring).
Id. at 75 (Stevens, J., concurring).
694 F.2d 466, 472 (1982).
PRE, 508 U.S. at 73–75 (Stevens, J., concurring) (quoting Grip-Pak, Inc. v. Illinois Tool Works, Inc., 694 F.2d 466, 472 (1982)).
Justice Steven’s concurrence and warning has proved prescient. Lower courts have been faced with the challenge of determining whether PRE implicitly overturned California Motor and, if not, how the two cases, which fundamentally contradict one another, can co-exist.131
Hakun, supra note 120, at 877.
Id. at 878.
The stakes are high in determining whether California Motor was overturned or not. An example can be useful to illustrate. Suppose Company Alpha and Company Beta are utility providers that operate and compete with one another in the state of Sierra. There are other utility providers that also compete but Company Alpha and Company Beta control an outsized portion of the market making them the dominant players. Sierra contracts with numerous utility providers, including Company Alpha and Company Beta, to procure services for their governmental offices and buildings. In order to be eligible for bidding on these contracts, which occur annually, Sierra mandates a set of requirements that each bidder must meet before entering the auction process. Now say that Company Beta petitions the state of Sierra’s government to create exclusive contracts for the procurement of the utility in all of the state’s properties for a period of 5 years. This would essentially wipe out competition for utility services to the state government for an extended period of time since only one company would be able to provide those services, and the smaller players not named Company Alpha or Company Beta would be unable to compete for the contracts. But if any competitor sued Company Beta for this governmental petitioning, they would almost certainly fail due to the immunity provided by Noerr-Pennington for government petitioning.
Now let us instead posit that Company Beta challenges Company Alpha’s eligibility to enter auctions for Sierra’s contracts. Company Beta executes these challenges through lawsuits by alleging that Company Alpha should be disqualified from participating due to its failure to meet eligibility requirements as required by Sierra’s laws. For our knowledge, Company Beta is interested in bringing these suits to eliminate the steep competition it faces from Company Alpha for contracts in certain regions of Sierra. Company Beta brings multiple lawsuits over the course of ten years, each time alleging that Company Alpha failed to meet a different eligibility requirement. Over the course of the decade, Company Beta’s lawsuits are unsuccessful save for a handful of instances, though they all pass the motion to dismiss stage. After a decade of facing lawsuits, Company Alpha sues Company Beta under the antitrust laws, and alleges that Company Beta’s eligibility requirement lawsuits were a sham and that they instead sought to restrain trade in, and monopolize, utility services for Sierra through the lawsuits. Company Beta defends itself by arguing that it had a reasonable chance of success in each individual lawsuit, as evidenced by its handful of wins and success at the motion to dismiss stage.
Under a system in which PRE applies to a series of petitions, and California Motor has been overturned, Company Beta would successfully be able to assert Noerr-Pennington immunity and not face antitrust liability because each lawsuit is evaluated on its own for objective reasonableness rather than looking at the series of lawsuits together and evaluating contextually whether the suits were intended to restrain trade. Contrastingly, if California Motor applies to a series of lawsuits, then it is far more likely that Company Alpha can successfully show that—even if individual lawsuits passed the motion to dismiss stage or resulted in victory for Company Beta—taken together, the lawsuits evince a pattern of baseless, repetitive claims such that they are a sham, and Company Beta should be subject to the antitrust laws for attempting to restrain trade and monopolize. Under such a scenario, it is clear ex-post that we do not want to incentivize companies to pursue the litigation strategy that Company Beta has pursued, which has the effect of increasing Company Alpha’s cost structure and is anticompetitive in intent. Notably, “[a]ntitrust regulations against sham litigation . . . serve an important purpose in the development of new technologies. If courts permit existing industry groups to use the legal system to place [] technologies at a disadvantage, progress will be stifled.”133
Julie Nickols, Second Circuit Applies Sherman Act to Satellite Broadcasting Issues, J. Air L. & Com. 1709, 1714 (2001).
While PRE was meant to provide clarity for determining sham litigation, it has done the opposite and instead created more confusion by way of a circuit split. The Second, Third, Fourth, Ninth, and Tenth circuits have held that a different analysis applies when the legality of a pattern of petitions is challenged than when just a single petition is challenged.134
Carson & Russell, supra note 15, at 2. See also PrimeTime 24 Joint Venture v. Nat’l Broad. Co., 219 F.3d 92 (2d Cir. 2000); Hanover 3201 Realty, LLC v. Vill. Supermarkets, Inc., 806 F.3d 162 (3d Cir. 2015); Waugh Chapel S., LLC v. United Food & Com. Workers Union Loc. 27, 728 F.3d 354 (4th Cir. 2013); USS-POSCO Indus. v. Contra Costa Cnty. Bldg. & Constr. Trades Council, ALF-CIO, 31 F.3d 800 (9th Cir. 1994); CSMN Inv., LLC v. Cordillera Metropolitan Dist., 956 F.3d 1276 (10th Cir. 2020).
Carson & Russell, supra note 15, at 2.
See Puerto Rico Tel. Co. v. San Juan Cable LLC, 874 F.3d 767 (1st Cir. 2017); U.S. Futures Exch., LLC v. Bd. of Trade of the City of Chicago, 953 F.3d 955 (7th Cir. 2020).
Carson & Russell, supra note 15, at 2.
Carson & Russell, supra note 15, at 2.
See supra notes 125–30.
Following PRE, the circuit courts were faced with the difficult question of whether the test as recited in PRE for sham exceptions applied only to singular lawsuits, or whether the test applied to a pattern of lawsuits as well. If California Motor applies to a pattern of suits, instead of PRE, then it is more likely that Noerr-Pennington immunity may be rescinded in instances where corporations abuse the doctrine. However, if PRE applies to patterns of suits as well, then it would be virtually impossible for any plaintiff to make a successful sham litigation and therefore antitrust violation argument given the relatively easy hurdle the defendants must pass–possess probable cause/not be objectively baseless. Therefore, the manner in which courts interpret and apply the sham litigation has a great amount of impact on the manner in which businesses may conduct litigation against their rivals.
The Ninth Circuit was the first circuit to attempt to resolve the friction between the two Supreme Court cases and it did so in 1994 in a case that was factually similar to California Motor.140
USS-POSCO Indus. v. Contra Costa Cnty. Bldg. & Constr. Trades Council, AFL-CIO, 31 F.3d 800 (9th Cir. 1994).
Carson & Russell, supra note 15, at 6.
USS-POSCO, 31 F.3d at 810.
Id.
Carson & Russell, supra note 15, at 8.
USS-POSCO, 31 F.3d at 810–11.
Id. at 811.
When dealing with a series of lawsuits, the question is not whether any one of them has merit—some may turn out to, just as a matter of chance—but whether they are brought pursuant to a policy of starting legal proceedings without regard to the merits and for the purpose of injuring a market rival. The inquiry in such cases is prospective: Were the legal filings made, not out of a genuine interest in redressing grievances, but as part of a pattern or practice of successive filings undertaken essentially for purposes of harassment?147
Id. (emphasis added).
As mentioned, the facts of the case as alleged in USS-POSCO were quite similar to California Motor. The success rates were also similar—California Motor’s defendants were successful in over half the suits brought, and in USS-POSCO the defendants were successful in over half the lawsuits alleged as being without merit.148
Id.
The fact that more than half of all the actions as to which we know the results turn out to have merit cannot be reconciled with the charge that the unions were filing lawsuits and other actions willy-nilly without regard to success. Given that the plaintiff has the burden in litigation, a batting average exceeding .500 cannot support BE&K’s theory. BE&K therefore cannot sustain its burden of showing that the unions’ conduct falls within the sham exception to the Noerr-Pennington doctrine.149
Id.
While the opinion overall seems to endorse the California Motor approach, a broad reading of USS-POSCO could be interpreted as breaking with California Motor by declaring that a series of petitions in which half the cases have proven successful cannot be sham litigation. While this is a possible reading, it is more probable that the Circuit meant to limit the “.500 batting average” litmus test to the facts and theory put forth by the plaintiffs in this case, rather than creating a broad holding that any series of petitions with a fifty percent success rate cannot be a sham.
The Second Circuit endorsed the Ninth Circuit’s reasoning in a 2000 case called PrimeTime 24 Joint Venture v. NBC, Inc..150
219 F.3d 92 (2d Cir. 2000).
Nickols, supra note 133, at 1711.
Id.
Id.
Id. (quoting PrimeTime, 219 F.3d at 96).
Nickols, supra note 133, at 1711.
PrimeTime, 219 F.3d at 97.
Id.
The Second Circuit, on appeal, noted that litigation, including good faith litigation to protect a valid copyright, falls within the protection of the Noerr-Pennington doctrine.158
Id. at 100.
Carson & Russell, supra note 11, at 8.
PrimeTime, 219 F.3d at 101 (quoting USS-POSCO Indus. v. Contra Costa Cnty. Bldg. & Constr. Trades Council, AFL-CIO, 31 F.3d 800, 811 (9th Cir. 1994).
As the Ninth Circuit has noted, it is immaterial that some of the claims might, “as a matter of chance,” have merit. The relevant issue is whether the legal challenges “are brought pursuant to a policy of starting legal proceedings without regard to the merits and for the purpose of injuring a market rival.”161
161Id. (quoting USS-Posco, 31 F.3d at 811).
The Court held that, under this standard, PrimeTime’s complaint stated a valid sham claim.162
Id.
Id.
The Fourth Circuit joined the Ninth and Second Circuits in holding that a pattern of anticompetitive petitioning is not entitled to Noerr-Pennington immunity even if individual petitions themselves are not objectively baseless.164
Carson & Russell, supra note 15, at 8.
Stephen Sutherland, Waugh Chapel South, LLC v. United Food and Commercial Workers Union Local 27, No. 12-1429, S.C. L. Rev. (Sept. 23, 2013), https://perma.cc/P3V9-7NBR.
Id.
Id.
Id.
29 U.S.C. § 187.
Waugh Chapel South, LLC v. United Food & Commercial Workers Union, 27, 728 F.3d 354, 356 (4th Cir. 2013).
Id.
Id.
Id.
The Fourth Circuit held that the Noerr-Pennington doctrine did not spare the defendants from the allegations at that stage of appeal.174
Id.
Id.
Id. at 363.
Id.
We distinguish PRE[] because it is ill-fitted to test whether a series of legal proceedings is sham litigation. When a party contends that it is defending a sham lawsuit, it is relatively simple for a judge to decide whether the singular claim it is presiding over is objectively baseless. But it is an entirely different undertaking to collaterally review–as here–fourteen state and administrative lawsuits for baselessness. It is especially difficult to do so where the presiding tribunal in those cases had no occasion to measure the baselessness of the suit because (1) it had no inkling that the action comprised a possible campaign of sham litigation, and (2) the plaintiffs preempted an assessment of frivolity by prematurely withdrawing some of their suits.
Accordingly, when purported sham litigation encompasses a series of legal proceedings rather than a singular legal action, we conclude the sham litigation standard of California Motor should govern. In this context, the focus is not on any single case. Rather a district court should conduct a holistic evaluation of whether ‘the administrative and judicial processes have been abused.’” The pattern of the legal proceedings, not their individual merits, centers this analysis.178
178Id. at 364 (quoting California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 513 (1972)) (emphasis added) (citation omitted).
The Court further noted that “other signs of bad-faith litigation–including those present in this case–may also be probative of an abuse of the adjudicatory process.”179
Id.
Id. at 365.
The Third Circuit joined the Ninth, Second, and Fourth Circuits in 2015 in adopting the pattern exception to sham petitioning. Hanover Realty had signed a contract with Wegmans to build a supermarket on its property in New Jersey; the agreement required Hanover to secure all required governmental permits and approvals before breaking ground.181
Hanover 3201 Realty, LLC v. Village Supermarkets, Inc., 806 F.3d 162, 166 (3d Cir. 2015).
Id. at 167.
Id. at 166.
Id.
The court agreed with the Second, Fourth, and Ninth Circuits and held that the two standards apply to different situations: California Motor applies to series of sham petitions, and PRE to a single sham petition.185
Id. at 179–80.
Carson & Russell, supra note 11, at 10.
Hanover 3201, 806 F.3d at 180.
Hanover 3201, 806 F.3d at 180.
The Tenth Circuit also addressed the split and adopted the Third Circuit’s interpretation of California Motor.189
Carson & Russell, supra note 15, at 12.
Carson & Russell, supra note 15, at 13 (quoting CSMN Inv., LLC v. Cordillera Metropolitan Dist., 956 F.3d 1276, 1288 (10th Cir. 2020)).
The First Circuit created a circuit split in 2017 when it broke with the Ninth, Second, Fourth and Third Circuit’s holding and “expressed doubt as to whether California Motor established a separate standard for immunity than PRE.”191
Carson & Russell, supra note 15, at 10–11.
Puerto Rico Tel. Co. v. San Juan Cable LLC, 874 F.3d 767, 768 (1st Cir. 2017).
Id. at 772.
Id. at 771.
Carson & Russell, supra note 15, at 11 (quoting Puerto Rico Tel. Co. v. San Juan Cable LLC, 874 F.3d 767, 772 n.4 (1st Cir. 2017)).
The Seventh Circuit joined the fray and sided with the First Circuit in 2020 in a case involving futures trading.196
Carson & Russell, supra note 15, at 12.
Id.
Id.
Id. at 12 (quoting U.S. Futures Exch. LLC v. Bd. Of Trade of the City of Chicago, 953 F.3d 955, 965 (7th Cir. 2020)).
U.S. Futures Exch., 953 F.3d at 965.
The Noerr-Pennington doctrine provides widespread coverage to businesses that are competing against one another in the marketplace. Pharmaceutical companies are notorious for developing “patent thickets” which artificially extend patent exclusivity and discourage potential competitors from challenging the patents because of the sheer number of patents that would have to be invalidated to have an effect on competition. Courts have upheld these patent thickets under the Noerr-Pennington doctrine.201
In re Humira (Adalimumab) Antitrust Litig., 465 F. Supp. 3d 811 (N.D. Ill. 2020). For a deeper discussion on Noerr-Pennington as it relates to pharmaceutical patents, see Lisa Orucevic, A Machete for the Patent Thicket: Using Noerr-Pennington Doctrine’s Sham Exception to Challenge Abusive Patent Tactics by Pharmaceutical Companies, 75 Vand. L. Rev. 277 (2022).
FTC v. AbbVie Inc., 976 F.3d 327, 338 (3d Cir. 2020).
Id. at 340.
Armstrong Surgical Ctr., Inc. v. Armstrong Cty. Mem’l Hosp., 185 F.3d 154, 162 (3d Cir. 1999) (“Liability for injuries caused by such state action is precluded even where it is alleged that a private party urging the action did so by bribery, deceit or other wrongful conduct that may have affected the decision-making process.”).
Tuosto v. Philip Morris USA Inc., 2007 U.S. Dist. LEXIS 61669, at *16 (S.D.N.Y. 2007). For a further discussion of misrepresentations to legislative bodies, see 50 Julian O. Von Kalinowski et al., Antitrust Laws and Trade Regulations, § 50.04 (2d ed. 2011).
John M. Armentano, An Unfair Fight — Noerr Permits Opponents of Zoning Changes to Deceive, FarrellFritz (July 26, 2000), https://perma.cc/Y2NU-QL4U.
Noerr-Pennington as a doctrine makes practical sense; “if the government can take an action, then an individual must be able to lobby for that action” whereby individuals include corporations.207
Fed. Trade Comm’n, supra note 9, at 15.
Id. at 15–16.
Id. at 9 n.30.
Some academics, such as Tim Wu, have suggested overruling Noerr altogether and relying entirely on First Amendment jurisprudence to protect political petitioning.210
See Wu, supra note 1, at 2.
Alan H. Melnicoe, An Exception to the Noerr-Pennington Doctrine: Conspiracy to Utilize the Judicial and Administrative Agencies to Restrain Trade, 22 Hastings L.J. 1016, 1033 (1971).
Walden, supra note 58, at 1243.
Minda, supra note 5, at 999.
Hurwitz, supra note 51, at 119.
Myers, supra note 105, at 1238.
Hurwitz, supra note 51, at 119.
Judge Posner, while not advocating for the overruling of Noerr, has questioned whether the legal merit of a case is determinative of being a sham.217
Grip-Pak, Inc. v. Illinois Tool Works, Inc., 694 F.2d 466, 472 (7th Cir. 1982).
Id.
Hakun, supra note 120, at 874.
The Supreme Court should endorse the Fourth Circuit’s view that California Motor is to be applied for a series of petitioning, while the PRE test is to be applied to an individual petition. The Fourth Circuit decision provides the greatest ability for the Supreme Court to maintain both California Motor and PRE as good law while allowing changes to the standards that apply for evaluating sham litigation. The Supreme Court should include in the sham litigation test “a holistic evaluation of whether the administrative and judicial processes have been abused”220
Waugh Chapel South, LLC v. United Food & Commercial Workers Union, Local 27, 728 F.3d 354, 364 (4th Cir. 2013).
When faced with an individual lawsuit absent any other legislative or judiciary actions, courts should utilize the PRE two-step test for objective baselessness and subjective intent. However, when courts must determine a suit in the broader context of administrative challenges or previous lawsuits, the court should apply the California Motor test to the pattern of suits to determine whether the sham exception to Noerr-Pennington immunity should apply. Two things can be true at once: the lawsuit can be likely to succeed and the company’s sole intent can be to harm competition. As such, whether a company’s actions should be immunized under Noerr-Pennington or whether to apply the sham exception should not be determined based on whether their suit is likely to succeed. Under the herein proposed test, the judiciary’s hands would no longer be tied by unclear doctrine and courts would be allowed to appraise whether companies actually care about winning its lawsuit or if its intentions are to harm competition.
Recall the example in Part III of Sierra in which Company Alpha and Company Beta compete alongside smaller competitors. Under this new proposed test, courts would, using the Fourth Circuit’s test, evaluate the multiple lawsuits Company Beta initiated as a pattern in which every suit is analyzed as one entity to determine whether Company Beta has been bringing multiple lawsuits in order to create anticompetitive effect. The court may choose to use the “baseball batting average” test which can help provide some indication of whether the suits were successful such that they cannot constitute a sham. However, a key change between the proposed test and the existing approaches that simply endorse the Ninth Circuit’s position is that this test would allow courts to evaluate the intentions underlying the decision to sue, similar to Judge Posner and Justice Steven’s advocated approach.
So, in our example, suppose that in addition to bringing lawsuits and petitioning Sierra’s government, Company Beta also undertook administrative challenges at the Utility Agency to further hinder competition in the growing renewable energy landscape. Some of the smaller competitors of Company Alpha and Company Beta are those that have been working towards innovating new approaches to providing cost-effective renewable solar power. If the Supreme Court adopted the proposed test, the court deciding whether Company Beta is entitled to Noerr-Pennington immunity or whether to apply the sham exception to its actions would be able to make this decision utilizing the knowledge of Company Beta’s actions in the legislative and administrative arenas. Company Beta would not be able to hide behind the “probable cause” of each individual lawsuit, as it would currently be able to do, but instead would have to provide a cohesive and coherent argument for why it has undertaken such actions notwithstanding its possibility of success. The onus would thus fall on courts in evaluating the merits of Company Beta’s actions, as courts already do when evaluating traditional Section 1 and Section 2 suits under the Sherman Act.
Whether a lawsuit is likely to succeed or not does not always provide a clear indication of whether the reason the lawsuit was brought was to succeed. Oftentimes, success is only ancillary to the corporation’s incentive to impede a competitor’s ability to effectively compete in the marketplace. Lawsuits are expensive – whether offensively suing or having to defend against them. But, for large corporations that have the money and resources to hire an army of law firms to bring such suits, the economics make much more sense to bring such lawsuits if there is a strong chance that in doing so it will be able to cripple its closest rival. Such a strategy is particularly rewarding and pursuit-worthy if the closest rival to the large corporation is a new and/or emerging firm that does not have at its disposal the resources and money required to litigate such lawsuits. As such, Courts should have the ability to parse through these motivations and assess lawsuits, not in a vacuum, but with the widest scope required to determine intentions. The FTC has already endorsed some version of this test as early as in 2006, writing in a staff report “a ‘pattern’ exception to Noerr should apply when a party invokes administrative processes, judicial processes, or a combination thereof, to hinder marketplace rivals.”221
Fed. Trade Comm’n, supra note 9, at 29.
For practices that have unambiguous anticompetitive effects, per se analysis is applied. Rule of Reason analysis “is aimed at determining the competitive effects of” a particular practice or action.222
Roger D. Blair & D. Daniel Sokol, The Rule of Reason and the Goals of Antitrust: An Economic Approach, 78 Antitrust L.J. 471, 475 (2012).
Id.
Joseph B. Maher, Survival of the Common Law Abuse of Process Tort in the Face of a Noerr-Pennington Defense, 65 U. Chi. L. Rev. 627, 627 (1998).
Daniel Fullerton, Petitioning for Cash: How Domestic Industries Exploit Antidumping Procedures and Antitrust Exceptions to Force Their Foreign Competitors into Lucrative Settlement Agreements, 2 Am. I. Bus. L. Rev. 355, 369 (2013).
Id. at 368.
Maher, supra note 223, at 629.
Courts are sometimes unable to evaluate intentions clearly. Arguably, the batting average standard could serve as a baseline in which if a single individual lawsuit in a pattern of suits is baseless, the immunity provided by the doctrine is extinguished. Such a clear standard would eliminate the troubles the California Motor court noted as part of the difficulty in drawing to a sham conclusion. However, this would be more akin to a “per-se” rule rather than a standard. Instead, courts should, in the course of its analysis, ask whether the legitimate gain the defendant is entitled to under the law, i.e. damages, is higher than the total anticompetitive effect of the pattern of the lawsuits, which includes the litigation costs and the attorney fees imposed upon the plaintiff. Under this type of analysis, a court would be able to evaluate a non-objectively baseless lawsuit as nonetheless being anticompetitive given its imposition of huge attorney fees on the opposing party as compared to the relative meager damages payoff. Such an analysis would get to the heart of Judge Posner and Justice Steven’s concerns around a broad Noerr-Pennington doctrine. As Justice Steven’s noted, the sham moniker should probably apply to “a plaintiff who had some reason to expect success on the merits but because of its tremendous cost would not bother to achieve that result without the benefit of collateral injuries imposed on its competitor by the legal process alone.”228
Professional Real Estate Investors Inc. v. Columbia Pictures Industries, Inc.,508 U.S. 49, 68–69 (1993) (Stevens, J., concurring).
We should disincentivize companies from utilizing underhanded tactics to minimize competition; a holistic evaluation of the company’s use of the legal processes would remediate the shortcomings that the “objective baselessness” standard commanded by PRE allows for. A holistic rule of reason-esque rule alongside a return to California Motor principles as advocated by the Fourth Circuit would provide the ability to bring more enforcement actions that are stronger and more likely to win in line with the goals of antitrust to allow for fair competition and enhance consumer welfare. Removing corporate incentives to bring multiple lawsuits for the sake of driving up cost structures or solely harming competitors will result in a fairer marketplace across most industries and make for a more concise doctrine.
Corporations should be incentivized to play by the same rules throughout the nation. The Supreme Court, when given the opportunity, should encourage uniformity amongst circuits. For this reason, it is important for the Supreme Court to resolve the existing circuit split to prevent any uneven application of Noerr-Pennington based simply on jurisdiction. The Supreme Court should adopt the Fourth Circuit’s decision in Waugh Chapel to delineate California Motor for a series of petitions and PRE for a single petition. In addition to endorsing the Fourth Circuit’s position, the Court should go further and also clarify that the first amendment protections that exist within the doctrine are to protect freedom of speech and petition, but that they do not provide the unfettered absolute right to speech and all its harmful ancillary uses. The Court should adopt a holistic analysis approach to prevent immunizing lawsuits that are brought solely to harm competition. In order to deduce such sham lawsuits, courts should evaluate whether the legitimate gains from the lawsuit outweigh the anticompetitive effects of bringing such suits. The effect of adopting such an evaluation method will be to provide a check on the wickedest of corporate desires to eliminate competition through the abuse of governmental processes while aligning the Noerr-Pennington doctrine with the changing landscape of antitrust laws by providing for a holistic evaluation of corporate actions. The Noerr-Pennington doctrine is an important standard that protects legitimate First Amendment interests, but it should no longer be used to enable and condone those actions which are plainly anticompetitive.
- 1Tim Wu, Antitrust & Corruption: Overruling Noerr (Columbia L. Sch. Pub. L. Working Paper, Paper No. 14-663, 2020), https://perma.cc/UG9Q-JXC3.
- 2Greg Coleridge, The Corporate Weaponization of Government, Common Dreams (Feb. 15, 2023), https://perma.cc/L8TV-7G5J.
- 3Richard Hofstader, The Age Of Reform 229 (1955); see also Lee Drutman, How Corporate Lobbyists Conquered American Democracy, The Atlantic (Apr. 20, 2015), https://perma.cc/Z899-UBAH.
- 4Drutman, supra note 3.
- 5Gary Minda, Interest Groups, Political Freedom, and Antitrust: A Modern Reassessment of the Noerr-Pennington Doctrine, 41 Hastings L.J. 905, 907–08 (1990).
- 6Id. at 908.
- 7Id.
- 8Daniel R. Fischel, Antitrust Liability for Attempts to Influence Government Action: The Basis and Limits of the Noerr-Pennington Doctrine, 45 U. Chi. L. Rev. 80 (1977).
- 9Fed. Trade Comm’n, Enforcement Perspectives on the Noerr-Pennington Doctrine, 18 (2006), https://perma.cc/U36K-CEQS (quoting Eastern R.R. Presidents Conf. v. Noerr Motor Freight, Inc., 365 U.S. 127, 140 (1961)).
- 10Douglas Michael Ely, The “Noerr-Pennington” Doctrine and the Petitioning of Foreign Governments, 84 Colum. L. Rev. 1343, 1343 (1984).
- 11See discussion infra Section IV on the pharmaceuticals industry.
- 12Daniel J. Davis, The Fraud Exception to the “Noerr-Pennington” Doctrine in Judicial and Administrative Proceedings, 60 U. Chi. L. Rev. 325, 330 (2001).
- 13California Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 513 (1972).
- 14Pro. Real Estate Invs. Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49 (1993).
- 15Dylan Carson & Scott Russell, Circuits Reinforce Split over When Noerr-Pennington Shields Serial Litigants, The Antitrust Source, Feb. 2021, at 5.
- 16USS-POSCO Indus. v. Contra Costa County Bldg. & Constr. Trades Council, AFL-CIO, 31 F.3d 800, 804 (9th Cir. 1994).
- 17Carson & Russell, supra note 11, at 6 (quoting USS-POSCO, 31 F.3d at 804).
- 18See PrimeTime 24 Joint Venture v. NBC, Inc., 219 F.3d 92 (2d Cir. 2000); Waugh Chapel South, LLC v. United Food & Commercial Workers Union, 27, 728 F.3d 354 (4th Cir. 2013); Hanover 3201 Realty, LLC v. Village Supermarkets, Inc., 806 F.3d 162 (3d Cir. 2015); CSMN Inv., LLC v. Cordillera Metro. Dist., 956 F.3d 1276 (10th Cir. 2020).
- 19See Puerto Rico Tel. Co. v. San Juan Cable LLC, 874 F.3d 767 (1st Cir. 2017); U.S. Futures Exch., LLC v. Bd. of Trade of the City of Chicago, 953 F.3d 955 (7th Cir. 2020).
- 20Seventh Circuit Deepens the Circuit Split on the “Sham Exception” to Noerr-Pennington, Hogan Lovells Publications (Mar. 31, 2020), https://perma.cc/2GTH-YQKW.
- 21Thomas A. Piraino Jr., Reconciling the Harvard and Chicago Schools: A New Antitrust Approach for the 21st Century, 82 Ind. L.J. 345, 346 (2007).
- 22Id.
- 23Legislative History of the Federal Antitrust Laws and Related Statutes 7 (Earl W. Kintner, ed., 1978)
- 2415 U.S.C. § 1.
- 2515 U.S.C. § 2.
- 26U.S. Const. amend. I.
- 27Earl W. Kinter & Joseph P. Bauer, Antitrust Exemptions for Private Requests for Governmental Action: A Critical Analysis of the Noerr-Pennington Doctrine, 17 U.C. Davis L. Rev. 549, 550 (1984).
- 28365 U.S. 127 (1961).
- 29381 U.S. 657 (1965).
- 30Noerr, 365 U.S. at 143.
- 31Id. at 129.
- 32Id.
- 33Id.
- 34Id. at 130.
- 35Lawrence D. Bradley, Noerr-Pennington Immunity From Antitrust Liability Under Clipper Exxpress v. Rocky Mountain Motor Tariff Bureau Inc.: Replacing the Sham Exception With a Constitutional Analysis, 69 Cornell L. Rev. 1305, 1307 (1984).
- 36Noerr, 365 U.S. at 132.
- 37Id. at 135.
- 38Id. at 136.
- 39Id.
- 40Fischel, supra note 8, at 83. See also Wu, supra note 1, at 4.
- 41Noerr, 365 U.S. at 136–37.
- 42Fischel, supra note 8, at 83 (quoting Noerr, 365 U.S. at 137).
- 43Id.
- 44Id.
- 45Id. (internal quotations omitted).
- 46Bradley, supra note 35, at 1308.
- 47Id. (quoting Noerr, 365 U.S. at 144).
- 48Id.
- 49381 U.S. 657 (1965).
- 50Fischel, supra note 8, at 85.
- 51James D. Hurwitz, Abuse of Governmental Processes, The First Amendment, and the Boundaries of Noerr, 16 J. Reprints Antitrust L. & Econ. 771, 788 (1986).
- 52Kinter & Bauer, supra note 27, at 556.
- 53Bradley, supra note 35, at 1308.
- 54Kinter & Bauer, supra note 27, at 556.
- 55United Mine Workers v. Pennington, 381 U.S. 657, 670 (1965) (“Noerr shields from the Sherman Act a concerted effort to influence public officials regardless of intent or purpose.”).
- 56Id.
- 57Lisa Orucevic, A Machete for the Patent Thicket: Using Noerr-Pennington Doctrine’s Sham Exception to Challenge Abusive Patent Tactics by Pharmaceutical Companies, 75 Vand. L. Rev. 277, 297 n.35 (2022).
- 58For further discussion, see Fischel, supra note 8; Wu, supra note 1; Jerrold L. Walden, More About Noerr’-Lobbying, Antitrust and the Right to Petition, 14 UCLA L. Rev. 1211 (1967); Karen Roche, Deference or Destruction? Reining in the “Noerr-Pennington” and State Action Doctrines, 45 Loy. L.A. L. Rev. 1295, 1318 (2012).
- 59Walden, supra note 58, at 1247.
- 60Id. at 1248; see also Minda, supra note 5, at 909 (“The Supreme Court has immunized the vast majority of government-petitioning cases from antitrust attack, even when the petitioning is for the purpose of restraining trade and even if the restraint causes an antitrust injury.”).
- 61Minda, supra note 5, at 910.
- 62Id. at 910 n.12 (quoting Robert Bork, The Antitrust Paradox: A Policy At War With Itself 350 (1978)).
- 63Stephen Calkins, Developments in Antitrust and the First Amendment: The Disaggregation of Noerr, 57 Antitrust L.J. 327, 329 (1988).
- 64Fischel, supra note 8, at 85; see also Michael W. Bien, Litigation as An Antitrust Violation: Conflict between the First Amendment and the Sherman Act, 16 U.S.F. L. Rev. 41, 51 (1989).
- 65Id.
- 66Id.
- 67370 U.S. 690 (1962).
- 68Fischel, supra note 8, at 86 (quoting Cont’l Ore Co. v. Union Carbide & Carbon Corp, 370 U.S. 690, 707 (1962)).
- 69Kinter & Bauer, supra note 27, at 556.
- 70Bien, supra note 64, at 51 (quoting United Mine Workers v. Pennington, 381 U.S. 657, 670 (1965)).
- 71Fischel, supra note 8, at 86.
- 72404 U.S. 508 (1972).
- 73Id. at 510 (“The [Noerr-Pennington doctrine] governs the approach of citizens or groups of them to administrative agencies (which are both creatures of the legislature, and arms of the executive) and to courts, the third branch of Government. Certainly the right to petition extends to all departments of the Government.”).
- 74Fischel, supra note 8, at 86.
- 75Kinter & Bauer, supra note 27, at 557 (quoting Cal. Motor, 404 U.S. at 511).
- 76Cal. Motor, 404 U.S. at 512.
- 77Id. at 511.
- 78Id. at 512. See also Kinter & Bauer, supra note 27, at 557.
- 79Cal. Motor, 404 U.S. at 512.
- 80Fischel, supra note 8, at 87.
- 81Cal. Motor, 404 U.S. at 510–11.
- 82Kinter & Bauer, supra note 27, at 558.
- 83371 U.S. 415, 444 (1963).
- 84Cal. Motor, 404 U.S. at 515.
- 85Id. at 517.
- 86Id. at 517 n.4.
- 87Bradley, supra note 35, at 1310.
- 88Id. (quoting Cal. Motor, 404 U.S. at 513) (emphasis added).
- 89Cal. Motor, 404 U.S. at 513.
- 90Id. at 515. The actions the Court referred to was “[a] combination of entrepreneurs to harass and deter their competitors from having ‘free and unlimited access’ to the agencies and courts to defeat that right by massive, concerted, and purposeful activities of the group [which] are ways of building up one empire and destroying another.”
- 91Eliner Elhauge, Making Sense of Antitrust Petitioning Immunity, 80 Cal. L. Rev. 1177, 1184 (1992).
- 92Id.
- 93Id.
- 94Id. at 1185.
- 95Id. at 1185.
- 96Roche, supra note 58, at 1306.
- 97Hurwitz, supra note 51, at 94.
- 98Pro. Real Estate Invs. Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49 (1993).
- 99486 U.S. 492 (1988).
- 100Roche, supra note 58, at 1307.
- 101Allied Tube & Conduit Corp. v. Indian Head, Inc., 486 U.S. 492, 508 n.10 (1988).
- 102Minda, supra note 5, at 977.
- 103Id. at 976.
- 104499 U.S. 365 (1991).
- 105Gary Myers, Antitrust and First Amendment Implications of Professional Real Estate Investors, 51 Wash. & Lee L. Rev. 1199, 1212 (1994) (quoting Omni, 499 U.S. at 380).
- 106Id. (quoting Omni, 499 U.S. at 380).
- 107Orucevic, supra note 57, at 300.
- 108Pro. Real Estate Invs. Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49, 51–52 (1993).
- 109Id. at 52.
- 110Id. at 53.
- 111Id.
- 112Id.
- 113Id. at 54 (internal quotes omitted).
- 114Id. at 57.
- 115Id. (emphasis added).
- 116Id. at 58. Whether Cal. Motor and the cases that followed actually stand for this proposition is dubious.
- 117Id. at 59.
- 118Id. at 60 (“In sum, fidelity to precedent compels us to reject a purely subjective definition of ‘sham.’ The sham exception so construed would undermine, if not vitiate, Noerr. And despite whatever ‘superficial certainty’ it might provide, a subjective standard would utterly fail to supply ‘real intelligible guidance.’”).
- 119Id. at 60–61 (emphasis added) (citation omitted).
- 120Nicholas E. Hakun, Strategic Litigation and Antitrust Petitioning Immunity, 12 U.C. Irvine L. Rev. 867, 876 (2022).
- 121PRE, 508 U.S. at 62–63.
- 122Id. at 62.
- 123Id. at 63.
- 124Id. at 63–64.
- 125Id. at 67 (Stevens, J., concurring).
- 126Hakun, supra 120, at 877.
- 127PRE, 508 U.S. at 73 (Stevens, J., concurring).
- 128Id. at 75 (Stevens, J., concurring).
- 129694 F.2d 466, 472 (1982).
- 130PRE, 508 U.S. at 73–75 (Stevens, J., concurring) (quoting Grip-Pak, Inc. v. Illinois Tool Works, Inc., 694 F.2d 466, 472 (1982)).
- 131Hakun, supra note 120, at 877.
- 132Id. at 878.
- 133Julie Nickols, Second Circuit Applies Sherman Act to Satellite Broadcasting Issues, J. Air L. & Com. 1709, 1714 (2001).
- 134Carson & Russell, supra note 15, at 2. See also PrimeTime 24 Joint Venture v. Nat’l Broad. Co., 219 F.3d 92 (2d Cir. 2000); Hanover 3201 Realty, LLC v. Vill. Supermarkets, Inc., 806 F.3d 162 (3d Cir. 2015); Waugh Chapel S., LLC v. United Food & Com. Workers Union Loc. 27, 728 F.3d 354 (4th Cir. 2013); USS-POSCO Indus. v. Contra Costa Cnty. Bldg. & Constr. Trades Council, ALF-CIO, 31 F.3d 800 (9th Cir. 1994); CSMN Inv., LLC v. Cordillera Metropolitan Dist., 956 F.3d 1276 (10th Cir. 2020).
- 135Carson & Russell, supra note 15, at 2.
- 136See Puerto Rico Tel. Co. v. San Juan Cable LLC, 874 F.3d 767 (1st Cir. 2017); U.S. Futures Exch., LLC v. Bd. of Trade of the City of Chicago, 953 F.3d 955 (7th Cir. 2020).
- 137Carson & Russell, supra note 15, at 2.
- 138Carson & Russell, supra note 15, at 2.
- 139See supra notes 125–30.
- 140USS-POSCO Indus. v. Contra Costa Cnty. Bldg. & Constr. Trades Council, AFL-CIO, 31 F.3d 800 (9th Cir. 1994).
- 141Carson & Russell, supra note 15, at 6.
- 142USS-POSCO, 31 F.3d at 810.
- 143Id.
- 144Carson & Russell, supra note 15, at 8.
- 145USS-POSCO, 31 F.3d at 810–11.
- 146Id. at 811.
- 147Id. (emphasis added).
- 148Id.
- 149Id.
- 150219 F.3d 92 (2d Cir. 2000).
- 151Nickols, supra note 133, at 1711.
- 152Id.
- 153Id.
- 154Id. (quoting PrimeTime, 219 F.3d at 96).
- 155Nickols, supra note 133, at 1711.
- 156PrimeTime, 219 F.3d at 97.
- 157Id.
- 158Id. at 100.
- 159Carson & Russell, supra note 11, at 8.
- 160PrimeTime, 219 F.3d at 101 (quoting USS-POSCO Indus. v. Contra Costa Cnty. Bldg. & Constr. Trades Council, AFL-CIO, 31 F.3d 800, 811 (9th Cir. 1994).
- 161Id. (quoting USS-Posco, 31 F.3d at 811).
- 162Id.
- 163Id.
- 164Carson & Russell, supra note 15, at 8.
- 165Stephen Sutherland, Waugh Chapel South, LLC v. United Food and Commercial Workers Union Local 27, No. 12-1429, S.C. L. Rev. (Sept. 23, 2013), https://perma.cc/P3V9-7NBR.
- 166Id.
- 167Id.
- 168Id.
- 16929 U.S.C. § 187.
- 170Waugh Chapel South, LLC v. United Food & Commercial Workers Union, 27, 728 F.3d 354, 356 (4th Cir. 2013).
- 171Id.
- 172Id.
- 173Id.
- 174Id.
- 175Id.
- 176Id. at 363.
- 177Id.
- 178Id. at 364 (quoting California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 513 (1972)) (emphasis added) (citation omitted).
- 179Id.
- 180Id. at 365.
- 181Hanover 3201 Realty, LLC v. Village Supermarkets, Inc., 806 F.3d 162, 166 (3d Cir. 2015).
- 182Id. at 167.
- 183Id. at 166.
- 184Id.
- 185Id. at 179–80.
- 186Carson & Russell, supra note 11, at 10.
- 187Hanover 3201, 806 F.3d at 180.
- 188Hanover 3201, 806 F.3d at 180.
- 189Carson & Russell, supra note 15, at 12.
- 190Carson & Russell, supra note 15, at 13 (quoting CSMN Inv., LLC v. Cordillera Metropolitan Dist., 956 F.3d 1276, 1288 (10th Cir. 2020)).
- 191Carson & Russell, supra note 15, at 10–11.
- 192Puerto Rico Tel. Co. v. San Juan Cable LLC, 874 F.3d 767, 768 (1st Cir. 2017).
- 193Id. at 772.
- 194Id. at 771.
- 195Carson & Russell, supra note 15, at 11 (quoting Puerto Rico Tel. Co. v. San Juan Cable LLC, 874 F.3d 767, 772 n.4 (1st Cir. 2017)).
- 196Carson & Russell, supra note 15, at 12.
- 197Id.
- 198Id.
- 199Id. at 12 (quoting U.S. Futures Exch. LLC v. Bd. Of Trade of the City of Chicago, 953 F.3d 955, 965 (7th Cir. 2020)).
- 200U.S. Futures Exch., 953 F.3d at 965.
- 201In re Humira (Adalimumab) Antitrust Litig., 465 F. Supp. 3d 811 (N.D. Ill. 2020). For a deeper discussion on Noerr-Pennington as it relates to pharmaceutical patents, see Lisa Orucevic, A Machete for the Patent Thicket: Using Noerr-Pennington Doctrine’s Sham Exception to Challenge Abusive Patent Tactics by Pharmaceutical Companies, 75 Vand. L. Rev. 277 (2022).
- 202FTC v. AbbVie Inc., 976 F.3d 327, 338 (3d Cir. 2020).
- 203Id. at 340.
- 204Armstrong Surgical Ctr., Inc. v. Armstrong Cty. Mem’l Hosp., 185 F.3d 154, 162 (3d Cir. 1999) (“Liability for injuries caused by such state action is precluded even where it is alleged that a private party urging the action did so by bribery, deceit or other wrongful conduct that may have affected the decision-making process.”).
- 205Tuosto v. Philip Morris USA Inc., 2007 U.S. Dist. LEXIS 61669, at *16 (S.D.N.Y. 2007). For a further discussion of misrepresentations to legislative bodies, see 50 Julian O. Von Kalinowski et al., Antitrust Laws and Trade Regulations, § 50.04 (2d ed. 2011).
- 206John M. Armentano, An Unfair Fight — Noerr Permits Opponents of Zoning Changes to Deceive, FarrellFritz (July 26, 2000), https://perma.cc/Y2NU-QL4U.
- 207Fed. Trade Comm’n, supra note 9, at 15.
- 208Id. at 15–16.
- 209Id. at 9 n.30.
- 210See Wu, supra note 1, at 2.
- 211Alan H. Melnicoe, An Exception to the Noerr-Pennington Doctrine: Conspiracy to Utilize the Judicial and Administrative Agencies to Restrain Trade, 22 Hastings L.J. 1016, 1033 (1971).
- 212Walden, supra note 58, at 1243.
- 213Minda, supra note 5, at 999.
- 214Hurwitz, supra note 51, at 119.
- 215Myers, supra note 105, at 1238.
- 216Hurwitz, supra note 51, at 119.
- 217Grip-Pak, Inc. v. Illinois Tool Works, Inc., 694 F.2d 466, 472 (7th Cir. 1982).
- 218Id.
- 219Hakun, supra note 120, at 874.
- 220Waugh Chapel South, LLC v. United Food & Commercial Workers Union, Local 27, 728 F.3d 354, 364 (4th Cir. 2013).
- 221Fed. Trade Comm’n, supra note 9, at 29.
- 222Roger D. Blair & D. Daniel Sokol, The Rule of Reason and the Goals of Antitrust: An Economic Approach, 78 Antitrust L.J. 471, 475 (2012).
- 223Id.
- 224Joseph B. Maher, Survival of the Common Law Abuse of Process Tort in the Face of a Noerr-Pennington Defense, 65 U. Chi. L. Rev. 627, 627 (1998).
- 225Daniel Fullerton, Petitioning for Cash: How Domestic Industries Exploit Antidumping Procedures and Antitrust Exceptions to Force Their Foreign Competitors into Lucrative Settlement Agreements, 2 Am. I. Bus. L. Rev. 355, 369 (2013).
- 226Id. at 368.
- 227Maher, supra note 223, at 629.
- 228Professional Real Estate Investors Inc. v. Columbia Pictures Industries, Inc.,508 U.S. 49, 68–69 (1993) (Stevens, J., concurring).