CACI No. 3430. “Noerr-Pennington” Doctrine

Judicial Council of California Civil Jury Instructions (2020 edition)

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3430.“Noerr-Pennington” Doctrine
[Name of defendant] claims that [his/her/nonbinary pronoun/its] agreement
with [name of alleged coparticipant] did not violate the law because [he/
she/nonbinary pronoun/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/nonbinary pronoun/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].)
• “The Noerr-Pennington doctrine immunizes legitimate efforts to influence a
branch of government from virtually all forms of civil liability. The doctrine
originated in the context of federal antitrust litigation. Stated generally, it was
initially intended to ensure that ‘efforts to influence government action are not
within the scope of the Sherman Act, regardless of anticompetitive purpose or
effect. [Citations.]’ The Noerr-Pennington doctrine is reinforced by two
constitutional considerations: ‘the First Amendment right to petition the
government . . . and comity, i.e., noninterference on the part of the courts with
governmental bodies that may validly cause otherwise anticompetitive effects
and with efforts intended to influence such bodies [citations].’ ” (People ex rel.
Harris v. Aguayo (2017) 11 Cal.App.5th 1150, 1160-1161 [218 Cal.Rptr.3d 221],
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,
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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. v. Lehrer (1994) 24 Cal.App.4th 570, 576 [29 Cal.Rptr.2d 646], internal
citations omitted.)
• “[B]ecause Noerr-Pennington protects federal constitutional rights, it applies in
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.)
• “While the Noerr-Pennington doctrine was ‘formulated in the context of 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.)
• “The Noerr-Pennington doctrine has been extended to preclude virtually all civil
liability for a defendant’s petitioning activities before not just courts, but also
before administrative and other governmental agencies.” (People ex rel. Harris,
supra, 11 Cal.App.5th at p. 1161.)
• “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., supra, 24 Cal.App.4th
at pp. 574-575, internal citations omitted.)
• “Efforts to influence governmental agencies ‘ “amount to a sham when though
‘ostensibly directed toward influencing governmental action, . . . [they are]
actually nothing more than an attempt to interfere directly with the business
relationships of a competitor . . . .” [Citation.]’ ” (People ex rel. Harris, supra,
11 Cal.App.5th at p. 1161.)
• “[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
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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 United States Supreme Court has set forth a two-part test for determining
whether a defendant’s petitioning activities fall within the so-called ‘sham
exception’ to the Noerr-Pennington doctrine: ‘first, it “must be objectively
baseless in the sense that no reasonable litigant could realistically expect success
on the merits”; second, the litigant’s subjective motivation must “conceal 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.” [Citation.]’ ” (People ex rel.
Harris, supra, 11 Cal.App.5th at p. 1161, original italics.)
• “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. v.
Abbott Labs, Inc. (9th Cir. 2009) 552 F.3d 1033, 1044.)
Secondary Sources
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, § 607
6 Antitrust 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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