Chapter IV. What Encompasses Petitioning?
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CHAPTER IV
WHAT ENCOMPASSES PETITIONING?
The Noerr-Pennington doctrine is premised upon governmental
tolerance of anticompetitive conduct, not a generalized right t o act
anticompetitively to compel governmental action, or to act based upon an
internal perception of expected approval. Therefore, the Noerr-
Pennington doctrine does not permit the “petitioner” to resort to
otherwise impermissible actions to obtain governmental favor, such as
group boycotts. Likewise, Noerr-Pennington does not operate
retroactively to immunize anticompetitive action that occurs in advance
of governmental approval. This chapter considers the boundaries of
petitioning for purposes of determining the applicability of the Noerr-
Pennington doctrine, and the conduct that falls within and outside those
boundaries.
A. Agreements to Seek Redress
The protections of the Noerr doctrine can extend beyond the right of
an individual or single entity to seek redress. For example, concerted
efforts among competitors to petition government officials are, as a
general matter, protected by the Noerr doctrine.
1
However, not all efforts
genuinely intended to influence the government are entitled to Noerr
immunity.
2
In FTC v. Superior Court Trial Lawyers Ass’n (SCTLA),
3
the
Supreme Court held that a group boycott against the District of Columbia,
organized by an association of private trial lawyers seeking higher rates
1. Allied Tube & Conduit Corp. v. Indian Head, Inc., 486 U.S. 492, 499
(1988); E. R.R. Presidents Conference v. Noerr Motor Freight, 365 U.S.
127, 145 (1961).
2. Allied Tube, 486 U.S. at 503-04.
3. 493 U.S. 411 (1990).
The Noerr-Pennington Doctrine
46
for court-appointed legal services provided by its members to indigent
clients, was not petitioning activity protected by Noerr.
In SCTLA, the Court noted that Allied Tube & Conduit Corp. v.
Indian Head, I nc.
4
had specifically condemned the activity of a
hypothetical group of competitors employing concerted anticompetitive
conduct as a means of obtaining a favorable governmental outcome.
5
As
the Court had observed in Allied Tube, blanket immunity for any
concerted action so long as it was intended to obtain favorable
governmental action would result in “competitors [being] free to enter
into horizontal price agreements as long as they wished to propose that
price as an appropriate level for governmental ratemaking or price
supports.”
6
The Court in SCTLA also rejected arguments comparing the efforts
of the trial lawyers to those of the civil rights movement in NAACP v.
Claiborne Hardware.
7
In Claiborne Hardware, the NAACP organized a
boycott of white merchants “to secure compliance by both civic and
business leaders with a lengthy list of demands for equality and racial
justice.”
8
The Court in SCTLA noted that black citizens participating in
the boycott in Claiborne Hardware “sought no special advantage for
themselves,” but instead, sought to upend “a social order that had
consistently treated them as second class citizens.”
9
By contrast, the trial
lawyers’ boycott was organized by those “who stand to profit financially
from a lessening of competition in the boycotted market,”
10
and therefore
did not enjoy immunity from antitrust liability.
Accordingly, SCTLA stands for the proposition that economically
motivated group boycotts are illegal as a form of “forced petitioning.”
Individual economic actors or even groups of competitors remain free to
petition the government for economic advantage, but must not seek to
4. 486 U.S. 492 (1988).
5. SCTLA, 493 U.S. at 425.
6. Id. (quoting Allied Tube, 486 U.S. at 503).
7. 458 U.S. 886 (1982).
8. Id. at 907.
9
SCTLA, 493 U.S. at 426 (quoting Claiborne Hardware, 4 58 U.S. at 912).
10. SCTLA, 493 U.S. at 427 (quoting Allied Tube, 486 U .S. at 508).
What Encompasses Petitioning?
47
accomplish their goals through illegal boycotts. The legal ends do not
justify the illegal means.
11
The distinction is one of degrees, largely based on the core self-
interest of the organizers. To the extent that Noerr immunity is rooted in
First Amendment jurisprudence, the reduced protection for economically
motivated boycotts is consistent with the reduced protection for
commercial speech generally.
12
And even a political boycott can be
regulated due to its deleterious economic effect.
13
Notably, the Supreme
Court in Claiborne Hardware acknowledged an economic effect as well,
stating that “[t]hrough exercise of these First Amendment rights,
petitioners sought to bring about political, social, and economic
change.”
14
But to extend that regulatory power to ban a core civil rights
boycott, albeit one with economic effects, exceeded the economic
regulatory power:
The right of the States to regulate economic activity could not justify a
complete prohibition against a nonviolent, politically motivated boycott
designed to force governmental and economic change and to effectuate
rights guaranteed by the Constitution itself.
15
In In re Brand Name Prescription Drug Antitrust Litigation,
16
a
group of retail pharmacies brought Section 1 claims against prescription
drug manufacturers, alleging a conspiracy to deny discounts to
pharmacies and to peg price increases t o changes in the Consumer Price
Index (CPI).
17
The district court granted judgment as a matter of law to
the manufacturers, finding that the informal agreement among
manufacturers to limit price increases to at or j ust above the CPI “to
39 (D.D.C. 2007) (finding no protection for energy companies allegedly
engaged in reducing supplies of natural gas to influence price while
petitioning the government to announce a natural gas shor tage).
12. See, e.g., Cent. Hudson Gas & Elec. Corp. v. P ub. Serv. Comm’n of N.Y.,
447 U.S. 557 (1980).
13. Claiborne Hardware, 458 U.S. at 912.
14. Id. at 911.
15. Id. at 914.
16. 186 F.3d 781 (7th Cir. 1999).
17. Id. at 783.
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