The practical side of Noerr-Pennington

• Pages: 123-136

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CHAPTER VII

THE PRACTICAL SIDE OF NOERR-PENNINGTON

The Noerr-Pennington doctrine presents fascinating theoretical

issues regarding the intersection of the Sherman Act and the First

Amendment. There is a practical side to Noerr too. This chapter

addresses how the Noerr-Pennington doctrine applies in various

litigation and counseling settings.

A. Defense or Immunity and Does It Matter

In litigation where Noerr-Pennington is at issue, one preliminary

issue to be considered is whether the Noerr doctrine is truly an immunity,

or whether it is an affirmative defense. In general, an immunity is law-

based and designed to provide protection from suit, while an affirmative

defense is fact-based and designed to protect a party from damages.1 The

majority of courts that have considered whether the Noerr-Pennington

doctrine is an immunity or a defense have concluded that Noerr is an

affirmative defense. 2 For example, in North Carolina Electric

1. W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS

§ 131, at 1032 (5th ed. 1984).

2. See, e.g., N.C. Elec. Membership Corp. v. Carolina Power & Light, 666

F.2d 50, 52 (4th Cir. 1981); We, Inc. v. City of Phila., 174 F.3d 322, 326

(3d Cir. 1999); Segni v. Commercial Office of Spain, 816 F.2d 344, 345-

46 (7th Cir. 1987); Acoustic Sys. v. Wenger Corp., 207 F.3d 287 (5th Cir.

2000); Bayou Fleet, Inc. v. Alexander, 234 F.3d 852, 860 (5th Cir. 2000);

IGEN Int’l v. Roche Diagnostics, 335 F.3d 303, 311 (4th Cir. 2003); Int’l

Longshore & Warehouse Union v. ICTSI Or., Inc., 863 F.3d 1178, 1187

n.6 (9th Cir. 2017). But see Bayou Fleet v. Alexander, 234 F.3d 852, 861

(5th Cir. 2000) (rejecting waiver argument where plaintiff “knew Noerr-

Pennington was a potential issue throughout most of the discovery

process”); Hanover 3201 Realty v. Village Supermarkets, 806 F.3d 162,

179 n.13 (3d Cir. 2015) (finding that plaintiffs’ Noerr-Pennington

arguments were not waived where “[d]efendants . . . consistently argued

for Noerr-Pennington immunity” and plaintiffs “consistently responded”).