The Noerr-Pennington Doctrine or 'Petitioning' Immunity

• Author: Christopher L. Sagers
• Pages: 77-99

77

CHAPTER V

THE NOERR-PENNINGTON DOCTRINE OR

“PETITIONING” IMMUNITY

The Noerr-Pennington doctrine is a judicially created immunity that

shields an antitrust defendant from liability for injuries resulting from

concerted or individual conduct that is reasonably calculated or genuinely

intended to petition government decision-makers for redress.

1

Noerr-

Pennington balances the right of the people to petition their government for

grievances against the fundamental goal of supporting our nation’s

established economic system, in which free and unfettered competition

is the rule.

A. The Key Cases

The first case to recognize immunity from the antitrust laws for

petitioning activities was Eastern Railr oad Presidents Conference v.

Noerr Motor Freight,

2

a case arising from competition between the

trucking and railroad industries.

3

The Court held that the railroads’

successful lobbying effort for legislation harmful to the trucking industry

could not violate the Sherman Act.

4

While the Court did not directly

1

. The doctrine takes its name from the first two cases to recognize it,

Eastern R.R. Presidents Conf. v. Noerr Motor Freight , 365 U.S. 12 7

(1961), and United Mine Workers of Am. v. Pennington, 381 U.S. 657

(1965).

2

. 365 U.S. 127 (1961).

3

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

the tr ucking industry became more and more powerful, the competition

between it a nd the railroads for th[e] [long-haul] business became

increasingly intense until, during 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.

4

. Id. at 135 (stating tha t “no violation o f the [Sherman] Act can be

predicated upon mere attempts to influe nce the passage or enforce ment of

laws.”).

A Handbook on the Scope of Antitrust

78

reach the question whether antitrust would violate the First Amendment,

5

it stressed that applying antitrust to political conduct “would raise

important constitutional questions,” and so chose not to “lightly impute

to Congress an intent to invade [constitutional] freedoms.”

6

Turning to

the facts, the Court found an “essential dissimilarity” between petitioning

conduct and the kind of activity traditionally subject to the Sherman

Act.

7

The Court also noted that a contrary holding would “substantially

impair the power of government to take actions through its legislature

and executive that operate to restrain trade.”

8

The Court emphasized that

a petitioner’s anticompetitive intent is irrelevant to antitrust immunity.

9

Thereafter, in United Mine Workers of America v. Pennington,

10

the

petitioning immunity was extended to petitions to the executive branch.

A small coal producer alleged that a miner’s union and certain large

producers conspired to drive it out of business. They did so, plaintiff

alleged, by urging the Secretary of Labor to impose high wage

requirements on producers selling coal to the Tennessee Valley

Authority (TVA). The Supreme Court held that the Noerr doctrine

“shields from the Sherman Act a concerted effort to influence public

officials regardless of intent or purpose.”

11

Five subsequent cases have refined the doctrine. California Motor

Transport Co. v. Trucking Unlimited

12

extended Noerr to the judicial

arena, and also gave effect to an exception to the immunity, first

recognized in Noerr itself, for “sham” petitioning.

13

Petitioning, Noerr

had said, even though it is “ostensibly directed

toward . . . government[],” is not immune when it is really “a mere sham

to cover what is actually nothing more than an attempt to interfere

directly with the business relationships of a competitor.”

14

Because the

California Motor defendants allegedly opposed the plaintiff’s entry into

their market, not by seeking to influence government officials, but by

making baseless regulatory filings “regardless of the merits of the cases,”

5

. Id. at 132 n.6.

6

. Id. at 138.

7

. Id. at 136.

8

. Id. at 137.

9

. Id. at 138-39.

10

. 381 U.S. 657 (1965).

11

. Id. at 670.

12

. 404 U.S. 508 (1972).

13

. Id. at 512.

14

. 365 U.S. at 144.