The Noerr-Pennington doctrine defined

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CHAPTER I

THE NOERR-PENNINGTON DOCTRINE DEFINED

Those who petition government for redress are generally immune from

antitrust liability.

—Professional Real Estate Investors v. Columbia Pictures Industries,

508 U.S. 49, 56 (1993).

A. The Definition of the Noerr-Pennington Doctrine

This book discusses the antitrust defense known most commonly as

the “Noerr-Pennington doctrine” after the first two cases that define the

doctrine.1

The Noerr-Pennington doctrine is a judicially-created policy that

(a) shields an antitrust defendant from liability for competitive injuries

(b) resulting from concerted or individual petitioning conduct (c) that is

reasonably calculated or genuinely intended to petition government for

redress (d) from government decision-makers. We discuss each of these

requirements in turn.

Requirement (a) – The doctrine eliminates liability for injuries

resulting from petitioning conduct. This may be referred to as the

“causation” element of Noerr-Pennington. Antitrust liability lies only

when conduct causes a competitive injury, and the definition makes clear

that any injury caused by petitioning conduct is covered, whether it flows

from the petitioning process or from the government’s resulting decision

to grant the petition: “To be sure, private parties may have influenced or

persuaded the government to act, but the government’s decision to act

reflects an independent governmental choice, constituting a supervening

1. E. R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127

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

(1965).