Noerr-Pennington doctrine

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Competition law
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History of competition law Monopolization Coercive monopoly Natural monopoly Barriers to entry Market power SSNIP test Relevant market Merger control
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Collusion Formation of cartels Price fixing Product bundling and tying Refusal to deal Group boycott Exclusive dealing Bid rigging Dividing territories Conscious parallelism Predatory pricing Misuse of patents and copyrights
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United States Sherman Antitrust Act Clayton Antitrust Act Robinson-Patman Act Federal Trade Commission Act Merger guidelines Essential facilities doctrine Noerr-Pennington doctrine Rule of reason Europe European Community competition law Irish Competition Law Competition Act 1998 (U.K.) Australia Trade Practices Act 1974
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The Noerr-Pennington doctrine is a doctrine of United States antitrust law set forth by the United States Supreme Court in a pair of cases, which suggested that under the First Amendment, it cannot be a violation of the federal antitrust laws for competitors to lobby the government to change the law in a way that would reduce competition.

The cases are Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961) and United Mine Workers v. Pennington, 381 U.S. 657 (1965). The Court later expanded on the doctrine in California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508 (1972). In Noerr, the Court held that "no violation of the [Sherman] Act can be predicated upon mere attempts to influence the passage or enforcement of laws". Similarly, the Court wrote in Pennington that "[j]oint efforts to influence public officials do not violate the antitrust laws even though intended to eliminate competition." Finally, in California Motor Transport, the Court added that "the right to petition extends to all departments of the Government [and] [t]he right of access to the courts is indeed but one aspect of the right of petition."

[edit] Expansion of the Doctrine Beyond the Antitrust Arena

Since its formulation, the doctrine has been extended to confer immunity from a variety of tort claims, including claims of unfair competition, tortious interference and abuse of process. See, e.g., Thermos Co. v. Igloo Products Corp., 1995 WL 745832, *6 (N.D.Ill.1995) (holding that “attempts to protect a valid and incontestable trademark” are privileged under the Noerr-Pennington doctrine); Virtual Works, Inc. v. Network Solutions, Inc., 1999 WL 1074122 (E.D.Va.1999) (applying the Noerr-Pennington doctrine to tortious interference claims); Brownsville Golden Age Nursing Home, Inc. v. Wells, 839 F.2d 155, 159-60 (3d Cir.1988) (recognizing applicability of the doctrine to abuse of process and other claims); Baltimore Scrap Corp. v. David J. Joseph Co., 81 F.Supp.2d 602, 620 (D.Md. 2000), aff'd, 237 F.3d 394 (4th Cir.2001) (holding that Noerr-Pennington immunity applies to common law claims). The Ninth Circuit recently held that Noerr-Pennington also protects against RICO claims when a defendant has sent thousands of demand letters threatening suit. Sosa v. DirectTV, Inc., 437 F.3d 923, 935 (9th Cir. 2006)(pdf)

[edit] Exception for sham proceedings

There is an exception to the doctrine for sham proceedings. For example, in California Motor Transport v. Trucking Unlimited, 404 U.S. 508 (1972), the Court held that the Noerr-Pennington doctrine did not apply where defendants had sought to intervene in licensing proceedings for competitors, because the intervention was not based on a good-faith effort to enforce the law, but was solely for the purpose of harassing those competitors and driving up their costs of doing business. The sine qua non of a "sham" proceeding is not the purpose to harm a competitor, but rather the absence of any purpose to actually obtain government action. Thus, initiating an administrative proceeding that one actually hopes to win in order to harm one's competitors is within the ambit of the Noerr-Pennington doctrine, while initiating a similar proceeding that one does not meaningfully intend to win solely to delay one's business competitors is within the sham exception.

In 1993, the Supreme Court rejected a purely subjective definition of what is a “sham” lawsuit and set out a two-part test. See Professional Real Estate Investors, Inc. v. Columbia Pictures Industries, Inc., 508 U.S. 49, 113 S.Ct. 1920, 1926 (1993). Under the first prong of the test, a lawsuit fits within the “sham” exception to First Amendment immunity only if the lawsuit is objectively baseless in that “no reasonable litigant could realistically expect success on the merits.” Only if the challenged litigation meets the first prong (“objectively baseless”) may a court go on to the next prong, which consists of a determination of whether the litigant’s subjective motivation in filing the objectively baseless lawsuit was an attempt to interfere with the business of a competitor.