What encompasses petitioning?

The Noerr-Pennington doctrine is premised upon governmental
approval of anticompetitive conduct, not a generalized right to act
anticompetitively to compel governmental approval, or to act based upon
an internal perception of expected approval. 1 Therefore, the Noerr-
Pennington doctrine does not permit the petitioner to resort to otherwise
impermissible actions to obtain governmental favor, such as group
boycotts. Likewise, Noerr-Pennington does not operate retroactively to
immunize anticompetitive action that occurs in advance of governmental
approval. This chapter considers 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.
A. Agreements to Seek Redress
The protections of the Noerr doctrine can extend beyond the right of
an individual or single entity to seek redress. For example, concerted
efforts among competitors to petition government officials are, as a
general matter, protected by the Noerr doctrine.2 However, not all efforts
intended to influence the government are entitled to Noerr immunity.3 In
FTC v. Superior Court Trial Lawyers Ass’n (SCTLA),4 the Supreme
1. See In re Tamoxifen Citrate Antitrust Litig., 466 F.3d 187, 217 (2d Cir.
2006) (finding that Noerr-Pennington does not shield “anticompetitive
action in advance of the government’s adopting industry’s
anticompetitive standard”); A.D. Bedell Wholesale Co. v. Philip Morris
Inc., 263 F.3d 239, 251 (3d Cir. 2001) (“If the restraint results from
private action there is no immunity. . . . Passive government approval is
2. Allied Tube & Conduit Corp. v. Indian Head, Inc., 486 U.S. 492, 499
(1988); E. R.R. Presidents Conference v. Noerr Motor Freight, 365 U.S.
127, 145 (1961).
3. Allied Tube, 486 U.S. at 503-04.
4. 493 U.S. 411 (1990).
50 The Noerr-Pennington Doctrine
Court held that a group boycott against the District of Columbia,
organized by an association of private trial lawyers seeking higher rates
for court-appointed legal services provided by its members to indigent
clients, was not petitioning activity protected by Noerr.5
In SCTLA, the Court noted that Allied Tube & Conduit Corp. v.
Indian Head, Inc.6 specifically condemned a group of competitors
employing concerted anticompetitive conduct as a means of obtaining a
favorable governmental outcome.7 As the Court observed in Allied Tube,
blanket immunity for any concerted action so long as it was intended to
obtain favorable governmental action would result in “competitors [being]
free to enter into horizontal price agreements as long as they wished to
propose that price as an appropriate level for governmental ratemaking or
price supports.”8
The Court in SCTLA also rejected arguments comparing the effort s
of the trial lawyers to those of the civil rights movement in NAACP v.
Claiborne Hardware.9 In Claiborne Hardware, the National Association
for the Advancement of Colored People (NAACP) organized a boycott
of white merchants “to secure compliance by both civic and business
leaders with a lengthy list of demands for equality and racial justice.”10
The Court in SCTLA noted that Black citizens participating in the boycott
in Claiborne Hardware “sought no special advantage for themselves,”
but instead, sought to upend “a social order that had consistently treated
them as second class citizens.”11 By contrast, the trial lawyers’ boycott in
SCTLA was organized by those “who stand to profit financially from a
lessening of competition in the boycotted market,”12 and therefore did
not enjoy immunity from antitrust liability.13
Under SCTLA, economically motivated group boycotts are illegal as
a form of “forced petitioning.” Individuals, or even groups of
competitors, remain free to petition the government for economic
5. Id. at 424-25.
6. 486 U.S. 492 (1988).
7. SCTLA, 493 U.S. at 425.
8. Id. (quoting Allied Tube, 486 U.S. at 503).
9. 458 U.S. 886 (1982).
10. Id. at 907.
11. SCTLA, 493 U.S. at 426 (quoting Claiborne Hardware, 458 U.S. at 912).
12. Id. at 427 (quoting Allied Tube, 486 U.S. at 508).
13. Id.
What Encompasses Petitioning?
advantage, but must not seek to accomplish their goals through illegal
The distinction is one of degrees, largely based on the core self-
interest of the organizers. Because Noerr immunity may be rooted in
First Amendment jurisprudence, the lack of protection for economically
motivated boycotts is consistent with the reduced protection for
commercial speech generally. 15 And even a political boycott can be
regulated due to its deleterious economic effect.16 Notably, the Supreme
Court in Claiborne Hardware acknowledged an economic effect as well,
stating that “[t]hrough exercise of these First Amendment rights,
petitioners sought to bring about political, social, and economic
change.”17 But to extend that regulatory power to ban a core civil rights
boycott, albeit one with economic effects, would exceed the economic
regulatory power:
The right of the States to regulate economic activity could not justify a
complete prohibition against a nonviolent, politically motivated boycott
designed to force governmental and economic change and to effectuate
rights guaranteed by the Constitution itself.18
In In re Brand Name Prescription Drug Antitrust Litigation,19 a
group of retail pharmacies brought Section 1 claims against prescription
drug manufacturers, alleging a conspiracy to deny discounts to
pharmacies and to peg price increases to changes in the Consumer Price
Index (CPI).20 The manufacturers were under political pressure to limit
14. See, e.g., Toyo Tire & Rubber Co. v. Atturo Tire Corp., 2017 U.S. Dist
LEXIS 4867, at *9 (N.D. Ill. 2017) (“This principle follows in part from
basic notions of causation: namely, when the government acts based on
petitioning, any purportedly unlawful result is most proximately caused
by the government action, not by the private action.”); 1 PHILLIP AREEDA
PRINCIPLES AND THEIR APPL ICATION202b (4th ed. 2018) (explaining
that “if a statute excludes everyone but the monopolist from a market, the
monopolist cannot itself be faulted”).
15. See, e.g., Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y.,
447 U.S. 557 (1980).
16. Claiborne Hardware, 458 U.S. at 912.
17. Id. at 911.
18. Id. at 914.
19. 186 F.3d 781 (7th Cir. 1999).
20. Id. at 783.

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