Introduction

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INTRODUCTION

The Noerr-Pennington doctrine shields an antitrust defendant from

liability for competitive injuries resulting from conduct that is reasonably

calculated or genuinely intended to petition government decision-makers

for redress. At the core of the doctrine is the conflict between two

fundamental values of our democracy. On the one hand is the right of the

people to petition their government to redress their grievances, set forth

in the U.S. Constitution’s First Amendment. On the other hand is the

fundamental goal of supporting free and unfettered competition.

Balancing these principles has been a challenge for the courts for the

sixty years since the Supreme Court issued its opinion in Eastern Railroad

Presidents Conference v. Noerr Motor Freight, 365 U.S. 127 (1961).

During that time, courts have struggled to define the boundaries of the

doctrine and to establish clear rules. This judicially-created doctrine has

matured over time and continues to develop. For courts, balancing the core

values is an arduous interpretative task. For practitioners, predicting the

results is an even greater challenge.

This handbook is divided into seven chapters. Chapter I lays out a

working definition of the Noerr doctrine and describes the challenges and

limitations of doing so. Chapter II examines the seven Supre me C ourt

cases that define the Noerr-Pennington doctrine. Chapter III considers

whether the doctrine derives from the Sherman Act itself, from the First

Amendment, or both. Chapter IV assesses which conduct may be

considered petitioning, analyzing the boundaries of petitioning for

purposes of determining the applicability of the Noerr-Pennington

doctrine, and where particular conduct falls with respect to those

boundaries. Chapter V discusses which en tities may be petitioned for

Noerr-Pennington purposes, including the extent to which petitioning

quasi-governmental bodies enjoys Noerr-Pennington protection and the

extent to which petitioning foreign governments is protected by the

doctrine. Chapter VI examines the exceptions to the Noerr-Pennington

doctrine, including the application of Noerr-Pennington to

misrepresentations, commercial activity, the Federal Trade Commission,

and standard-essential patents (SEPs) subject to fair and/or reasonable,

and non-discriminator (F/RAND) commitments. Finally , Chapte r VII

address es procedural issues that may be raised by application of the

doctrine.