Chapter II. The Sources Of The Noerr-Pennington Doctrine

• Pages: 7-30

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CHAPTER II

THE SOURCES OF THE NOERR-PENNINGTON

DOCTRINE

Petitioning immunity began with two cases, Eastern Railroad

Presidents Conference v. Noerr Motor Freight,

1

and United Mine

Workers of America v. Pennington.

2

Petitioning immunity has since

taken the names of these cases and is now referred to as the Noerr-

Pennington doctrine. The doctrine has matured through five subsequent

Supreme Court cases, which are discussed in this chapter.

A. Eastern Railroad Presidents Conference v. Noerr Motor Freight

The first case to recognize immunity from the antitrust laws for

petitioning activities was Eastern Railroad Presidents Conference v.

Noerr Motor Freight,

3

a case arising from fierce competition between the

trucking and railroad industries for the long distance delivery of heavy

freight.

4

To combat the trucking companies, the railroads retained a

public relations firm and initiated a comprehensive publicity campaign

against the trucking industry. A group of trucking firms and their trade

association filed suit against numerous railroads, a trade association of

the presidents of the railroad defendants, and the public relations firm

1. 365 U.S. 127 (1961).

2. 381 U.S. 657 (1965).

3. 365 U.S. 127.

4. See id. at 128-29. The Court described the background of the dispute:

“As the trucking industry became more and more power ful, t he

competition between it and the railroads for this [long-haul] business

became increasingly intense until, d uring the period following the

conclusion of World War II, at least the railroads, if not both of the

competing groups, came to view the struggle as one of economic life or

death for their method of transportation.” Id.

8 The Noerr-Pennington Doctrine

representing the railroads, alleging violations of Section 1 and Section 2

of the Sherman Act.

5

The truckers claimed that the railroads had retained the public

relations firm to conduct a publicity campaign against the trucking

industry that resulted in, among other things, the veto by the Governor of

Pennsylvania of the “Fair Truck Bill,” which would have allowed

truckers to carry heavier loads on Pennsylvania roads.

6

The truckers

alleged that the campaign was motivated solely by the railroads’ desire to

destroy the truckers as competitors and was conducted using deceptive

advertising, because the publicity campaign did not disclose that the

railroads were behind it.

7

The railroads admitted that they had engaged

in a publicity campaign to induce the passage of state laws directed at the

trucking industry and to persuade law enforcement agencies to enforce

existing laws more rigorously.

8

They denied, however, that they were

motivated by anticompetitive intent.

9

Instead, the railroads contended

that they desired:

to inform the public and the legislatures of the several states of the truth

with regard to the enormous damage done to the roads by the operators of

heavy and especially overweight trucks, with regard to their repeated and

deliberate violations of the law limiting the weight and speed of big trucks,

with regard to their failure to pay their fair share of the cost of constructing,

maintaining and repairing the roads, and with regard to the driving hazards

they create.

10

The railroads argued that the Sherman Act did not apply to conduct

designed to influence the passage and enforcement of laws.

11

They also

counterclaimed, alleging that truckers engaged in their own negative

publicity campaign against railroads.

12

5. Id. at 129.

6. Id. at 129-30.

7. Id.

8. Id. at 131.

9. Id.

10. Id.

11. Id. at 131-32.

12. Id. The district court found no liability for the truckers’ campaign,

because the truckers’ campaign was a “defensive measure” while the

railroads had “created” the “public relations battle of bogus organizations