Noerr-pennington: Safeguarding the First Amendment Right to Petition the Government
| Publication year | 2014 |
| Author | Stuart N. Senator & Gregory M. Sergi |
Stuart N. Senator & Gregory M. Sergi1
The right to petition the government is guaranteed in the First Amendment: "Congress shall make no law . . . abridging the freedom . . . to petition the Government for a redress of grievances."2 The Noerr-Pennington doctrine3 exists to safeguard that right by conferring immunity on a wide variety of petitioning activities—including petitioning of the legislative, executive, and judicial branches—from subsequent legal liability.4 While the Noerr-Pennington doctrine originated with immunity from claims under the Sherman Act, it extends much more broadly to confer immunity from many other legal claims premised on conduct involving protected petitioning activities.5
The scope of the Noerr-Pennington doctrine arises in a wide range of cases. For example, the issue has arisen recently with respect to cases involving: efforts to lobby local zoning boards;6 litigation over patents and copyrights;7 litigation in foreign jurisdictions;8 "serial" litigation;9 pre-suit demand letters;10 citizen petitions submitted to the U.S. Food and Drug Administration ("FDA");11 proceedings before the U.S. Commodity Futures Trading Commission ("CFTC");12 and challenges to the Master Settlement Agreement ending advertising litigation against tobacco companies.13 These recent cases present a number of recurring issues regarding the application of Noerr-Pennington.
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One recurring issue is whether petitioning activity involves a "legislative" body or an "adjudicative" body. This is a critical question because the scope of Noerr-Pennington immunity differs for petitioning in the political arena compared to petitioning judicial bodies.14 Another frequent issue is how courts should apply the "sham" petitioning exception, particularly the criteria relevant to determine whether prior petitioning was "objectively baseless."15 Relatedly, a question of practical importance is whether the determination on objective baselessness can (and should) in most circumstances be made on the pleadings or at another early stage in the litigation.16
In light of the purpose of the Noerr-Pennington doctrine, we provide the following suggestions:
(1) Because there is a significant difference in the scope of Noerr-Pennington immunity for legislative petitioning versus adjudicatory petitioning, greater clarity is necessary on how to identify what is legislative versus adjudicatory, particularly in light of the increasing role of administrative agencies that often perform both functions.
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(2) The two-part inquiry (objective and subjective) set forth in Professional Real Estate Investors, Inc. v. Columbia Pictures Industries, Inc. ("PREI")17 demarcates a narrow exception to Noerr-Pennington immunity based upon "sham" petitioning in the context of litigation. That exception should continue to be construed narrowly so as to avoid intrusion upon or chilling bona fide petitioning, including petitioning that may be unlikely to succeed but advances "'good faith argument[s] for the extension, modification, or reversal of existing law.'"18
(3) Courts should continue to hold plaintiffs to the pleading standard of requiring specific facts that would show "objective baselessness" before allowing a claim based on alleged sham petitioning to proceed. When appropriate, courts should dismiss claims challenging petitioning activities subject to Noerr-Pennington immunity at the pleading stage, including in instances where the public or judicially noticeable record shows that the conduct at issue does not fall within the sham exception. If a more factual determination is necessary, courts should attempt to phase discovery such that the record necessary to evaluate summary judgment is created early in the litigation.
The remainder of this article explores these three issues in more detail.
The Noerr-Pennington doctrine arose in the context of providing immunity for legislative petitioning from antitrust liability. In Noerr, the Supreme Court held petitioning efforts by a group of railroads to influence legislation adverse to their competitors in the trucking industry were immune from liability under the Sherman Act. The Court explained that "the whole concept of representation depends upon the ability of the people to make their wishes known to their representatives."19 Thus, the Sherman Act does not punish "political activity" by which "the people . . . freely inform the government of their wishes."20 The Court reached that conclusion despite the fact that the railroads' "sole purpose . . . was to destroy the truckers as competitors" and their efforts were conducted in an unethical and deceptive manner.21
Four years later in Pennington, the Court held a union's efforts to petition the executive branch—specifically the Secretary of Labor—for a favorable minimum wage determination were immune from antitrust liability.22 Notably, the Secretary of Labor granted the union's minimum wage request. The Court therefore held that regardless of the union's intent, the plaintiff could not recover damages for injury it suffered by what was ultimately an act of the Secretary of Labor.23
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Adjudicatory petitioning. The Supreme Court first applied Noerr-Pennington immunity to petitioning administrative agencies and courts in California Motor Transport Co. v. Trucking Unlimited.24 The defendants instituted state and federal proceedings to defeat plaintiffs' applications to acquire certain operating rights. The Court held that the principles of Noerr and Pennington applied to petitioning of administrative agencies and courts: "Certainly the right to petition extends to all departments of the Government. The right of access to the courts is indeed but one aspect of the right of petition."25 But, the Court also held that immunity from the antitrust laws may not apply where "a pattern of baseless, repetitive claims may emerge which leads the factfinder to conclude that the administrative and judicial process have been abused" by "effectively barring [an adversary] from access to the agencies and courts."26
Most recently, in PREI the Court articulated the contours of a specific two-part definition of "sham" petitioning in the context of litigation:
- "First, the lawsuit must be objectively baseless in the sense that no reasonable litigant could realistically expect success on the merits."27 ("Objective Component")
- "Only if challenged litigation is objectively meritless may a court examine the litigant's subjective motivation. Under this second part of our definition of sham, the court should focus on whether the baseless lawsuit conceals 'an attempt to interfere directly with the business relationships of a competitor,' through the 'use [of] the governmental process—as opposed to the outcome of that process—as an anticompetitive weapon.'"28 ("Subjective Component")
Significantly, the issue under the Subjective Component is not whether the defendant had an anticompetitive intent. A market participant is entitled to use the adjudicatory process to try to achieve an anticompetitive result or otherwise harm a competitor. Indeed, it is the nature of litigation that the plaintiff intends to gain an advantage over the defendant. Rather, the Subjective Component asks whether the party knew or reasonably should have known at the time that its litigation was objectively unreasonable.
The Court noted in PREI that it "need not decide . . . whether and, if so, to what extent Noerr permits the imposition of antitrust liability for a litigant's fraud or other misrepresentations."29 While some courts put fraud and misrepresentations into a separate analytic category under Noerr-Pennington,30 it can be useful to think offraud or misrepresentations as one way of satisfying the objectively baselessness requirement. As one district court stated, "it is apparent that any misrepresentation exception to the doctrine should be limited to misrepresentations respecting the substance of the claim that show that the party's litigation position had no objective basis, i.e., that it was not 'objectively genuine.'"31
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Legislative petitioning. While the "sham" exception to Noerr-Pennington for adjudicatory petitioning is exceedingly narrow as defined by PREI, it is even more narrow, if it exists at all, in the legislative context.32 In City of Columbia v. Omni Outdoor Advertising,33 the Court stated that the "sham" exception would apply where a defendant's "activities are 'not genuinely aimed at procuring favorable government action' at all."34 On the other hand, it is not a "sham" where a defendant "'genuinely seeks to achieve his governmental result, but does so through improper means."35 This articulation significantly limits the scope of any possible "sham" exception for legislative petitioning because it "will indeed be a rare case to find a petitioner that has no genuine interest 'at all' in procuring governmental action, even though its principal purpose and expectation may be to injure its rivals directly through the petitioning process."36 Areeda states that "it is difficult" to identify what would qualify as "sham" in the legislative context: "least difficult for judicial processes, more difficult for administrative adjudication, much more difficult for executive or administrative action generally, and most difficult for legislative processes where it is virtually impossible to identify the sham."37
In the context of legislative petitioning, courts have specifically rejected application of PREI's "sham" exception for adjudicatory petitioning.38 As the Ninth Circuit explained, "it would seem quite pointless to ask whether [a] lobbying effort was 'objectively baseless.' To decide objective baselessness, we would need objective standards, of...
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