Noerr-Pennington Doctrine (Litigator Series)

This casebook contains 89 federal court of appeals decisions that interpret and apply the Noerr-Pennington doctrine. The selection of decisions spans from 2000 through February 2012. The full text of the Noerr and Pennington decisions are also included. The decisions are organized by jurisdiction.and are listed in the order of frequency of citation. The most cited decisions appear higher in each section.

Under the Petition Clause of the First Amendment to the U.S. Constitution, private actors have the right to petition the government for action. U.S. Const. amend I ("Congress shall make no law . . . abridging . . . the right of the people . . . to petition the Government for a redress of grievances."). Where private actors petition the government for action that would violate antitrust law, the Petition Clause immunizes the actors from litigation in connection with their petitioning. Under these circumstances, private immunization from alleged violations of the Sherman Act is known as the Noerr-Pennington doctrine. See United Mine Workers of Am. v. Pennington, 381 US 657 (1965); E. R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 US 127 (1961). "The doctrine is an "expression[] of the principle that the antitrust laws regulate business, not politics," and is designed to protect "citizens' participation in government." City of Columbia v. Omni Outdoor Adver., Inc., 499 U.S. 365, 383 (1991). Thus, "'[w]here a restraint upon trade or monopolization is the result of valid governmental action, as opposed to private action,' those urging the governmental action enjoy absolute immunity from antitrust liability for the anticompetitive restraint." Allied Tube & Conduit Corp. v. Indian Head, Inc., 486 U.S. 492, 499 (1988) (quoting Noerr, 365 U.S. at 136). However, private actors remain liable for anticompetitive activity not associated with government petitioning or antitrust violations that they directly cause. Id. at 501. "The dividing line between restraints resulting from governmental action and those resulting from private action may not always be obvious." Id. at 501-02.

Vibo Corp., Inc. v. Conway, No. 10-5043. (6th Circuit 2012)