California Civil Jury Instructions (CACI) (2017)

3430. "Noerr-Pennington" Doctrine

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3430.“Noerr-Pennington” Doctrine
[Name of defendant] claims that [his/her/its] agreement with [name of
alleged coparticipant] did not violate the law because [he/she/it] was
trying in good faith to influence government action. [Name of plaintiff]
claims that this action was a sham or a pretext to restrain competition.
To establish [his/her/its] claim, [name of plaintiff] must prove both of the
following:
1. That [name of defendant]’s actions before [name of governmental
body] were undertaken without regard to the merits; and
2. That the reason [name of defendant] engaged in [specify the
petitioning activity, e.g., “filing an objection to an environmental
impact report”] was to use the [specify the claimed process, e.g.,
“environmental agency approval”] process to harm [name of
plaintiff] by [specify the manner of harm, e.g., “delaying [name of
plaintiff]’s entry into the market”], rather than to obtain a
successful outcome from that process.
New September 2003
Sources and Authority
• “The Noerr-Pennington doctrine provides that there is no antitrust liability
under the Sherman Act for efforts to influence government which are protected
by the First Amendment right to petition for redress of grievances, even if the
motive behind the efforts is anticompetitive.” (Hernandez v. Amcord, Inc. (2013)
215 Cal.App.4th 659, 678 [156 Cal.Rptr.3d 90].)
• An exception to the doctrine arises when efforts to influence government are
merely a sham; such efforts are not protected by the Noerr-Pennington doctrine
and are subject to antitrust liability.” (Hi-Top Steel Corp. v. Lehrer (1994) 24
Cal.App.4th 570, 574–575 [29 Cal.Rptr.2d 646], internal citations omitted.)
• “Stated most generally, the Noerr-Pennington doctrine declares that efforts to
influence government action are not within the scope of the Sherman Act,
regardless of anticompetitive purpose or effect.” (Blank v. Kirwan (1985) 39
Cal.3d 311, 320 [216 Cal.Rptr. 718, 703 P.2d 58], internal citations omitted.)
• “ ‘The right of the people to inform their representatives in government of their
desires with respect to the passage or enforcement of laws cannot properly be
made to depend upon their intent in doing so. It is neither unusual nor illegal
for people to seek action on laws in the hope that they may bring about an
advantage to themselves and a disadvantage to their competitors.’ ” (Hi-Top
Steel Corp., supra, 24 Cal.App.4th at p. 576, internal citations omitted.)
• “[B]ecause Noerr-Pennington protects federal constitutional rights, it applies in
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all contexts, even where a state law doctrine advances a similar goal.” (Theme
Promotions, Inc. v. News Am. Mktg. FSI (9th Cir. 2008) 546 F.3d 991, 1007.)
• “An entity loses Noerr-Pennington immunity from antitrust liability if its
conduct falls within the ‘sham’ exception to the doctrine. That is, ‘[t]here may
be situations in which a publicity campaign, ostensibly directed toward
influencing governmental action, is a mere sham to cover what is actually
nothing more than an attempt to interfere directly with the business
relationships of a competitor and the application of the Sherman Act would be
justified.’ ” (Kaiser Found. Health Plan, Inc. v. Abbott Labs, Inc. (9th Cir.
2009) 552 F.3d 1033, 1044, internal citation omitted.)
• “[T]he sham exception ‘encompasses situations in which persons use the
governmental process—as opposed to the outcome of that process—as an
anticompetitive weapon.’ It ‘involves a defendant whose activities are “not
genuinely aimed at procuring favorable government action” at all, not one “who
‘genuinely seeks to achieve his governmental result, but does so through
improper means.’ ” ’ ” (Hi-Top Steel Corp., supra, 24 Cal.App.4th at p. 577,
internal citations omitted.)
• “[W]e hold the sham exception to the Noerr-Pennington doctrine is applicable
in California.” (Hi-Top Steel Corp., supra, 24 Cal.App.4th at p. 579.)
• “[W]e identified three circumstances in which the sham litigation exception
might apply: first, where the lawsuit is objectively baseless and the defendant’s
motive in bringing it was unlawful; second, where the conduct involves a series
of lawsuits ‘brought pursuant to a policy of starting legal proceedings without
regard to the merits’ and for an unlawful purpose; and third, if the allegedly
unlawful conduct ‘consists of making intentional misrepresentations to the
court, litigation can be deemed a sham if ‘a party’s knowing fraud upon, or its
intentional misrepresentations to, the court deprive the litigation of its
legitimacy.’ ” (Sosa v. DIRECTV, Inc. (9th Cir. 2006) 437 F.3d 923, 938,
internal citations omitted.)
• “The Supreme Court has endorsed a two-part test for sham litigation. First, the
lawsuit must be objectively baseless in the sense that no reasonable litigant
could reasonably expect success on the merits. Only if the challenged litigation
is objectively baseless may we consider the litigant’s subjective motivation. The
question then is ‘whether the baseless lawsuit conceals an attempt to interfere
directly with the business relationships of a competitor, through the use of the
governmental process—as opposed to the outcome of that process—as an
anticompetitive weapon.’ ” (Theme Promotions, Inc., supra, 546 F.3d at p. 1007,
internal citations omitted.)
• “Even though [plaintiff] must ultimately prove the existence of a ‘sham’ by
clear and convincing evidence, it need only show that there is a genuine issue
of material fact to avoid summary judgment.” (Kaiser Found. Health Plan, Inc.,
supra, 552 F.3d at p. 1044.)
• “While the Noerr-Pennington doctrine was ‘formulated in the context of
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antitrust cases,’ it has been applied in cases involving other types of civil
liability, including liability for interference with contractual relations or
prospective economic advantage or unfair competition.” (Hernandez, supra, 215
Cal.App.4th at p. 679, internal citations omitted.)
Secondary Sources
1 Witkin, Summary of California Law (10th ed. 2005) Contracts, § 594
6Antitrust Laws & Trade Regulation, Ch. 105, California, § 105.10[1][h] (Matthew
Bender)
3 Levy et al., California Torts, Ch. 40, Fraud and Deceit and Other Business Torts,
§ 40.164[5][a] (Matthew Bender)
49 California Forms of Pleading and Practice, Ch. 565, Unfair Competition,
§ 565.73 (Matthew Bender)
1 Matthew Bender Practice Guide: California Unfair Competition and Business
Torts, Ch. 5, Antitrust, 5.41
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