Introduction

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INTRODUCTION

In its simplest terms, the Noerr-Pennington doctrine shields an

antitrust defendant from liability for competitive injuries resulting from

individual or concerted conduct 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 grievances, set in t he foundation of our

representative democracy. On the other hand is the fundamental goal of

supporting our nation’s established economic system in which fre e an d

unfette red co mpetiti on is the rule.

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

for the nearly 50 years since the Supreme Court issued its opinion in

Eastern Railroad Presidents Conference v. Noerr Motor Freight, 365

U.S. 127 (1961). Courts have struggled to define the boundaries of the

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

matured over time, but continues to develop. For lower courts, balancing the

core values is an arduous interpretative task. For counselors and

practitioners, predicting the results is an even greater challenge.

This monograph is divided into seven chapters to facilitate an analysis

of the Noerr-Pennington doctrine. Chapter I develops a working definition

of the Noerr doctrine and describes the challenges and limitations of

doing so. Chapter II examines the seven Supreme Court ca ses tha t

define the Noerr-Pen ningto n doctrine. C hapter III considers whether

the doctrine derives from the Sherman Act itself or from the First

Amendment. 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 the

conduct that falls within and outside those boundaries.

Chapter V discusses which entities may be petitioned for Noerr-

Pennington purposes, including the extent to which petitioning quasi-

governmental bodies may enjoy Noerr-Pennington protection and the

extent to which petitioning in foreign countries is protected. Chapter VI

examines the exceptions to the Noerr-Pennington doctrine, including the

application of Noerr-Pennington to misrepresentations, commercial

activity, and the Federal Trade Commission. Finally, Cha pter VII

address es procedural issues raised by the doctrine.