Associations and Immunity for Government-Related Activities

• Pages: 93-122

93

CHAPTER VI

ASSOCIATIONS AND IMMUNITY FOR

GOVERNMENT-RELATED ACTIVITIES

This chapter examines the scope of theNoerr-Pennington (or

“Noerr”) doctrine (immunity for certain lobbying activities and other

solicitations of competition-restricting government action) and the

Parker doctrine (immunity for certain state actions). These antitrust

exemptions are often relevant to association activities.

A.Lobbying and Other Solicitations of Government Action

Trade and professional associations often lobby for the passage of

laws, rules, or other governmental decisions or outcomes that would

benefit their members. Associationsalso sometimes promulgate

industry standards that may be adopted and enforced by government

agencies. Associations may prosecute, defend, or engage in other

conduct incidental to litigation on behalf of their members. These types

of conduct

―

lobbying, standard setting, administrative advocacy, and

litigation

―

sometimes have competition-restricting consequences and

may trigger antitrust claims. For trade and professional associations

faced with such a lawsuit, the Noerr-Pennington doctrine may offer a

defense. Under the Noerr-Pennington doctrine, “[t]hose who petition

government for redress are generally immune from antitrust liability.”

1

Noerr immunity extends to legitimate petitioning conduct directed to

any of the three branches of government—legislative, executive, or

judicial.

2

Additionally, because Noerr immunity shields “the approach

of citizens . . . to administrative agencies . . . and to courts,” the doctrine

immunizes administrative advocacy as well as litigation.

3

Thus, to the

extent that trade and professional association activity involves

1. Prof’l Real Estate Investors v. Columbia Pictures Indus., 508 U.S. 49, 56

(1993).

2. See Cal. Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 510

(1972) (litigation); United Mine Workers v. Pennington, 381 U.S. 657,

669 (1965) (administrative advocacy); Eastern R.R. Presidents

Conference v. Noerr Motor Freight, 365 U.S. 127 , 136-37 (1961)

(lobbying).

3. Cal. Motor Transp., 404 U.S. at 510.

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Antitrust and Associations Handbook

petitioning conduct, it may enjoy immunity from the antitrust laws.

4

The

Noerr immunity doctrine is subject to important qualifications. The

scope of the Noerr immunity doctrine and its exceptions is the focus of

this section.

1.

Basic Framework of

Noerr

Immunity

While the Noerr doctrine applies to petitioning activity directed to

any of the three branches of government, there are differences in the

manner in which the doctrine applies, depending on whether legislative

or other processes are involved.

a.Attempts to Influence Legislative Processes

The Noerr doctrine is rooted in the First Amendment right “to

petition the government for a redress of grievances”

5

as well as a

prudential restriction on the scope of the Sherman Act.

6

In Eastern

Railroad Presidents Conference v. Noerr Motor Freight,

7

the Supreme

Court held that the federal antitrust laws did not apply to the lobbying

and public relations efforts of an association of railroads which were

intended to thwart competition from the trucking industry.

8

The railroad

association had engaged in a wide-ranging lobbying and publicity effort

in order to block state legislation that would have made trucking more

competitive with railroads. The Court said that the antitrust challenge to

4. While originating in the antitrust context, the Noerr doctrine has been

applied to other bodies of fed eral and state law. See, e.g., Bill Johnson’s

Rests. v. NLRB, 461 U.S. 731, 743-44 (1983) (National Labor Relations

Act); IGEN Int’l v. Roche Diagnostics, 335 F.3d 303, 313 (4th Cir. 2 003)

(state unfair competition claim); Hydranautics v. FilmTec Corp., 204 F.3d

880, 887 (9th Cir. 2000) (patent and state law claims); Int’l Broth. of

Teamsters v. Philip Morris Inc., 196 F.3 d 818, 826 (7th Cir. 199 9)

(RICO); Hirschfeld v. Spanakos, 104 F.3d 16, 19 (2d Cir. 1997) (Section

1983); Havoco o f Am., Ltd. v. Ho llobow, 702 F.2d 64 3, 650 (7th Cir.

1983) (federal securities laws); E urotech, Inc. v. Cosmos European

Travels, 189 F. Supp. 2d 385, 39 2 (E.D. Va. 2002) (tort claims).

5. U.S. CONST. amend. I.

6. See generallyABASECTION OF ANTITRUST LAW,ANTITRUST LAW

DEVELOPMENTS 1284-90 (6th ed. 2007) [hereinafter ANTITRUST LAW

DEVELOPMENTS].

7. 365 U.S. 127 (1961).

8. See id. at 136-37.