Noerr-Pennington doctrine in California

2021One invoking the privilege must do more than simply point to the allegedly privileged document. 30 anticompetitive weapon.’ ” (BE&K Construction Co. v. National Labor Relations Board (2002) 536 U.S. 516, 526 [ 122 S.Ct. 2390 , 153 L.Ed.2d 499 ] (BE&K), quoting Professional Real Estate Investors, Inc. v. Columbia Pictures Industries, Inc. (1993) 508 U.S. 49, 60-61 [ 113 S.Ct. 1920 , 123 L.Ed.2d 611 ].) To meet this test, the defendant’s petitioning activities thus “must be a sham both objectively and subjectively.” (BE&K, at p. 526.) Neurelis argues that Aquestive has not carried its burden of

2021One invoking the privilege must do more than simply point to the allegedly privileged document. 30 anticompetitive weapon.’ ” (BE&K Construction Co. v. National Labor Relations Board (2002) 536 U.S. 516, 526 [ 122 S.Ct. 2390 , 153 L.Ed.2d 499 ] (BE&K), quoting Professional Real Estate Investors, Inc. v. Columbia Pictures Industries, Inc. (1993) 508 U.S. 49, 60-61 [ 113 S.Ct. 1920 , 123 L.Ed.2d 611 ].) To meet this test, the defendant’s petitioning activities thus “must be a sham both objectively and subjectively.” (BE&K, at p. 526.) Neurelis argues that Aquestive has not carried its burden of

2008Under the Noerr-Pennington doctrine, “[t]hose who petition government ... are generally immune from antitrust liability.” 7 (Professional Real Estate Investors, Inc. v. Columbia Pictures Industries, Inc. (1993) 508 U.S. 49, 56 [ 123 L.Ed.2d 611 , 113 S.Ct. 1920 ] (Professional Real Estate Investors); see also Blank, supra, 39 Cal.3d at p. 320 [“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”].) “This doctrine relies on the constitutional right to petition for redress

2008Under the Noerr-Pennington doctrine, “[t]hose who petition government ... are generally immune from antitrust liability.” 7 (Professional Real Estate Investors, Inc. v. Columbia Pictures Industries, Inc. (1993) 508 U.S. 49, 56 [ 123 L.Ed.2d 611 , 113 S.Ct. 1920 ] (Professional Real Estate Investors); see also Blank, supra, 39 Cal.3d at p. 320 [“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”].) “This doctrine relies on the constitutional right to petition for redress

2008Under the Noerr-Pennington doctrine, “[t]hose who petition government ... are generally immune from antitrust liability.” 7 (Professional Real Estate Investors, Inc. v. Columbia Pictures Industries, Inc. (1993) 508 U.S. 49, 56 [ 123 L.Ed.2d 611 , 113 S.Ct. 1920 ] (Professional Real Estate Investors); see also Blank, supra, 39 Cal.3d at p. 320 [“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”].) “This doctrine relies on the constitutional right to petition for redress

2008Under the Noerr-Pennington doctrine, “[t]hose who petition government ... are generally immune from antitrust liability.” 7 (Professional Real Estate Investors, Inc. v. Columbia Pictures Industries, Inc. (1993) 508 U.S. 49, 56 [ 123 L.Ed.2d 611 , 113 S.Ct. 1920 ] (Professional Real Estate Investors); see also Blank, supra, 39 Cal.3d at p. 320 [“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”].) “This doctrine relies on the constitutional right to petition for redress

2021One invoking the privilege must do more than simply point to the allegedly privileged document. 30 anticompetitive weapon.’ ” (BE&K Construction Co. v. National Labor Relations Board (2002) 536 U.S. 516, 526 [ 122 S.Ct. 2390 , 153 L.Ed.2d 499 ] (BE&K), quoting Professional Real Estate Investors, Inc. v. Columbia Pictures Industries, Inc. (1993) 508 U.S. 49, 60-61 [ 113 S.Ct. 1920 , 123 L.Ed.2d 611 ].) To meet this test, the defendant’s petitioning activities thus “must be a sham both objectively and subjectively.” (BE&K, at p. 526.) Neurelis argues that Aquestive has not carried its burden of

2021One invoking the privilege must do more than simply point to the allegedly privileged document. 30 anticompetitive weapon.’ ” (BE&K Construction Co. v. National Labor Relations Board (2002) 536 U.S. 516, 526 [ 122 S.Ct. 2390 , 153 L.Ed.2d 499 ] (BE&K), quoting Professional Real Estate Investors, Inc. v. Columbia Pictures Industries, Inc. (1993) 508 U.S. 49, 60-61 [ 113 S.Ct. 1920 , 123 L.Ed.2d 611 ].) To meet this test, the defendant’s petitioning activities thus “must be a sham both objectively and subjectively.” (BE&K, at p. 526.) Neurelis argues that Aquestive has not carried its burden of

2013Code, § 47, subd. (b)(2)) and the Noerr-Pennington doctrine (Mine Workers v. Pennington 5 (1965) 381 U.S. 657, 670 ["Joint efforts to influence public officials do not violate the antitrust laws even though intended to eliminate competition."]; Eastern R.

2013Code, § 47, subd. (b)(2)) and the Noerr-Pennington doctrine (Mine Workers v. Pennington 5 (1965) 381 U.S. 657, 670 ["Joint efforts to influence public officials do not violate the antitrust laws even though intended to eliminate competition."]; Eastern R.

2013Conf. v. Noerr Motors (1961) 365 U.S. 127 ; Mine Workers v. Pennington (1965) 381 U.S. 657 ), which is "a broad rule of statutory construction, under which laws are construed so as to avoid burdening the constitutional right to petition." (Tichinin v. City of Morgan Hill (2009) 177 Cal.App.4th 1049, 1064 .) "Under the Noerr- Pennington doctrine, those who petition any department of the government for redress are generally immune from statutory liability for their petitioning conduct." (Sosa v. DIRECTV, Inc. (9th Cir. 2006) 437 F.3d 923 , 929.) That doctrine has no application here because Sobe

2013Conf. v. Noerr Motors (1961) 365 U.S. 127 ; Mine Workers v. Pennington (1965) 381 U.S. 657 ), which is "a broad rule of statutory construction, under which laws are construed so as to avoid burdening the constitutional right to petition." (Tichinin v. City of Morgan Hill (2009) 177 Cal.App.4th 1049, 1064 .) "Under the Noerr- Pennington doctrine, those who petition any department of the government for redress are generally immune from statutory liability for their petitioning conduct." (Sosa v. DIRECTV, Inc. (9th Cir. 2006) 437 F.3d 923 , 929.) That doctrine has no application here because Sobe

2021However, “[a]n exception to the doctrine arises when efforts to influence government are merely a sham; such efforts are not protected by the Noerr Pennington doctrine . . . .” (Hi-Top Steel Corp. v. Lehrer (1994) 24 Cal.App.4th 570, 575 .) There is a two part test for determining whether a defendant’s petitioning activity falls outside the Noerr-Pennington doctrine. “[F]irst, it ‘must be objectively baseless in the sense that no reasonable litigant could realistically expect success of the merits’; second, the litigant’s subjective motivation must ‘conceal an attempt to interfere directly wit

2021However, “[a]n exception to the doctrine arises when efforts to influence government are merely a sham; such efforts are not protected by the Noerr Pennington doctrine . . . .” (Hi-Top Steel Corp. v. Lehrer (1994) 24 Cal.App.4th 570, 575 .) There is a two part test for determining whether a defendant’s petitioning activity falls outside the Noerr-Pennington doctrine. “[F]irst, it ‘must be objectively baseless in the sense that no reasonable litigant could realistically expect success of the merits’; second, the litigant’s subjective motivation must ‘conceal an attempt to interfere directly wit

2022Guarantee Assn. (2006) 136 Cal.App.4th 464, 478 [explaining the Noerr-Pennington doctrine]) and liability on the state law causes of action related to marijuana is precluded by the Noerr-Pennington doctrine as well as Civil Code section 47, subdivision (b)(2); that the omission of facts in Sergeant St.

2022Guarantee Assn. (2006) 136 Cal.App.4th 464, 478 [explaining the Noerr-Pennington doctrine]) and liability on the state law causes of action related to marijuana is precluded by the Noerr-Pennington doctrine as well as Civil Code section 47, subdivision (b)(2); that the omission of facts in Sergeant St.

2018(Id. at pp. 1057, 1059, 1064.) Concluding this investigative conduct was protected, the court found pertinent a line of federal cases applying the Noerr-Pennington doctrine,6 which “immunizes conduct encompassed by the Petition Clause―i.e., legitimate efforts to influence a branch of government―from virtually all forms of civil liability,” because “in deciding whether the doctrine applies, a court must first determine whether conduct falls within the right to petition.” (Id. at p. 1065.) The Court of Appeal explained that it considered the line of federal cases “persuasive authority for the pr

2018(Id. at pp. 1057, 1059, 1064.) Concluding this investigative conduct was protected, the court found pertinent a line of federal cases applying the Noerr-Pennington doctrine,6 which “immunizes conduct encompassed by the Petition Clause―i.e., legitimate efforts to influence a branch of government―from virtually all forms of civil liability,” because “in deciding whether the doctrine applies, a court must first determine whether conduct falls within the right to petition.” (Id. at p. 1065.) The Court of Appeal explained that it considered the line of federal cases “persuasive authority for the pr

2017Stated 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.]” (Blank v. Kirwan (1985) 39 Cal.3d 311, 320 [ 216 Cal.Rptr. 718 , 703 P.2d 58 ].) 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

2017Stated 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.]” (Blank v. Kirwan (1985) 39 Cal.3d 311, 320 [ 216 Cal.Rptr. 718 , 703 P.2d 58 ].) 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

2018Gallegos v. Pacific Lumber Co. (2008) 158 Cal.App.4th 950 , 964, 70 Cal.Rptr.3d 501 , fns. omitted ( Pacific Lumber ).) "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. [Citations.]" ( Pacific Lumber , supra , 158 Cal.App.4th at pp. 964-965, 70 Cal.Rptr.3d 501 .) "While the Noerr-Pennington doctrine was formulated in the context of antitrust cases, it has been applied or discussed in cases involving other types of civil liabi

2018Gallegos v. Pacific Lumber Co. (2008) 158 Cal.App.4th 950 , 964, 70 Cal.Rptr.3d 501 , fns. omitted ( Pacific Lumber ).) "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. [Citations.]" ( Pacific Lumber , supra , 158 Cal.App.4th at pp. 964-965, 70 Cal.Rptr.3d 501 .) "While the Noerr-Pennington doctrine was formulated in the context of antitrust cases, it has been applied or discussed in cases involving other types of civil liabi

2021(Id. at p. 478; see Sosa v. DIRECTV, Inc. (9th Cir. 2006) 437 F.3d 923 , 930–933, 942 [Noerr-Pennington doctrine barred RICO claim based on “prelitigation demand to settle legal claims” because the “doctrine requires that, to the extent possible, we construe federal statutes so as to avoid burdens on activity arguably within the scope of the Petition Clause of the First Amendment”].) The Noerr-Pennington doctrine is based on the right to petition the government under the First Amendment to the United States Constitution.

2021(Id. at p. 478; see Sosa v. DIRECTV, Inc. (9th Cir. 2006) 437 F.3d 923 , 930–933, 942 [Noerr-Pennington doctrine barred RICO claim based on “prelitigation demand to settle legal claims” because the “doctrine requires that, to the extent possible, we construe federal statutes so as to avoid burdens on activity arguably within the scope of the Petition Clause of the First Amendment”].) The Noerr-Pennington doctrine is based on the right to petition the government under the First Amendment to the United States Constitution.

2008Under the Noerr-Pennington doctrine, “[t]hose who petition government ... are generally immune from antitrust liability.” 7 (Professional Real Estate Investors, Inc. v. Columbia Pictures Industries, Inc. (1993) 508 U.S. 49, 56 [ 123 L.Ed.2d 611 , 113 S.Ct. 1920 ] (Professional Real Estate Investors); see also Blank, supra, 39 Cal.3d at p. 320 [“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”].) “This doctrine relies on the constitutional right to petition for redress

2008Under the Noerr-Pennington doctrine, “[t]hose who petition government ... are generally immune from antitrust liability.” 7 (Professional Real Estate Investors, Inc. v. Columbia Pictures Industries, Inc. (1993) 508 U.S. 49, 56 [ 123 L.Ed.2d 611 , 113 S.Ct. 1920 ] (Professional Real Estate Investors); see also Blank, supra, 39 Cal.3d at p. 320 [“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”].) “This doctrine relies on the constitutional right to petition for redress

2004However, as the dissent acknowledges, an exception to Noerr-Pennington immunity exists where one uses the governmental process (rather than its outcome) as a sham to cover anticompetitive conduct; a "classic example" of conduct to which immunity does not apply is where one brings "administrative and judicial actions ... solely to impose expense and delay, with no expectation of success." ( Columbia v. Omni Outdoor Advertising, Inc. (1991) 499 U.S. 365, 380 , 111 S.Ct. 1344 , 113 L.Ed.2d 382 .) As with the sham exception to the Noerr-Pennington doctrine, malicious prosecution permits recovery o

2004However, as the dissent acknowledges, an exception to Noerr-Pennington immunity exists where one uses the governmental process (rather than its outcome) as a sham to cover anticompetitive conduct; a "classic example" of conduct to which immunity does not apply is where one brings "administrative and judicial actions ... solely to impose expense and delay, with no expectation of success." ( Columbia v. Omni Outdoor Advertising, Inc. (1991) 499 U.S. 365, 380 , 111 S.Ct. 1344 , 113 L.Ed.2d 382 .) As with the sham exception to the Noerr-Pennington doctrine, malicious prosecution permits recovery o

2018Suffice to say, the issue in this case is not only whether plaintiffs' complaint states a cause of action under the sham exception to the Noerr-Pennington doctrine (it does not), but also whether plaintiffs carried their burden of showing that their claims were "factually substantiated." ( Baral v. Schnitt , supra , 1 Cal.5th at p. 396, 205 Cal.Rptr.3d 475 , 376 P.3d 604 .) Plaintiffs do not identify any evidence in this record supportive of their theory that defendants undertook their petitioning activity as an anti-competitive weapon.

2018Suffice to say, the issue in this case is not only whether plaintiffs' complaint states a cause of action under the sham exception to the Noerr-Pennington doctrine (it does not), but also whether plaintiffs carried their burden of showing that their claims were "factually substantiated." ( Baral v. Schnitt , supra , 1 Cal.5th at p. 396, 205 Cal.Rptr.3d 475 , 376 P.3d 604 .) Plaintiffs do not identify any evidence in this record supportive of their theory that defendants undertook their petitioning activity as an anti-competitive weapon.

2016(See Cardtoons, L.C. v. Major League Baseball Players Assn. (10th Cir. 2000) 208 F.3d 885, 891 [“prelitigation threats communicated solely between private parties are [not] afforded immunity from suit by the right to petition guaranteed by the First Amendment”].) Nevertheless, Bagheri and Fazlelahi argue that the Noerr-Pennington doctrine applies in this case and protects the surveillance they conducted on Adeli-Nadjafi and her family because the surveillance was a prelitigation investigation into the merits of the case they ultimately filed.

2016(See Cardtoons, L.C. v. Major League Baseball Players Assn. (10th Cir. 2000) 208 F.3d 885, 891 [“prelitigation threats communicated solely between private parties are [not] afforded immunity from suit by the right to petition guaranteed by the First Amendment”].) Nevertheless, Bagheri and Fazlelahi argue that the Noerr-Pennington doctrine applies in this case and protects the surveillance they conducted on Adeli-Nadjafi and her family because the surveillance was a prelitigation investigation into the merits of the case they ultimately filed.

1994(Ibid.) While the Noerr-Pennington doctrine was formulated in the context of antitrust cases, it has been applied or discussed in cases involving other types of civil liability (City of Long Beach v. Bozek (1982) 31 Cal.3d 527, 533 [ 183 Cal.Rptr. 86 , 645 P.2d 137 , A.L.R.4th 2851]; Gorman Towers, Inc. v. Bogoslovsky (8th Cir. 1980) 626 F.2d 607, 614-615 ; see Westfield Partners, Ltd. v. Hogan (N.D.Ill. 1990) 740 F.Supp. 523, 526 ; Pennwalt Corp. v. Zenith Laboratories, Inc. (E.D.Mich. 1979) 472 F.Supp. 413, 424 ), including liability for interference with contractual relations or prospective

1994(Ibid.) While the Noerr-Pennington doctrine was formulated in the context of antitrust cases, it has been applied or discussed in cases involving other types of civil liability (City of Long Beach v. Bozek (1982) 31 Cal.3d 527, 533 [ 183 Cal.Rptr. 86 , 645 P.2d 137 , A.L.R.4th 2851]; Gorman Towers, Inc. v. Bogoslovsky (8th Cir. 1980) 626 F.2d 607, 614-615 ; see Westfield Partners, Ltd. v. Hogan (N.D.Ill. 1990) 740 F.Supp. 523, 526 ; Pennwalt Corp. v. Zenith Laboratories, Inc. (E.D.Mich. 1979) 472 F.Supp. 413, 424 ), including liability for interference with contractual relations or prospective

2024(See Hernandez v. Amcord, Inc. (2013) 215 Cal.App.4th 659, 679 [“the Noerr-Pennington doctrine is a doctrine of substantive law which shields defendants from liability based on their legitimate right to petition government officials”]; see also Berman v. RCA Auto Corp. (1986) 177 Cal.App.3d 321, 324 [“Procedural defenses do not absolutely shield a defendant from liability.”].) While we are cited no authority addressing whether termination on Noerr- Pennington grounds is favorable for malicious prosecution purposes, we agree with Kay that Berman is dispositive.

2024(See Hernandez v. Amcord, Inc. (2013) 215 Cal.App.4th 659, 679 [“the Noerr-Pennington doctrine is a doctrine of substantive law which shields defendants from liability based on their legitimate right to petition government officials”]; see also Berman v. RCA Auto Corp. (1986) 177 Cal.App.3d 321, 324 [“Procedural defenses do not absolutely shield a defendant from liability.”].) While we are cited no authority addressing whether termination on Noerr- Pennington grounds is favorable for malicious prosecution purposes, we agree with Kay that Berman is dispositive.

2024(See Hernandez v. Amcord, Inc. (2013) 215 Cal.App.4th 659, 679 [“the Noerr-Pennington doctrine is a doctrine of substantive law which shields defendants from liability based on their legitimate right to petition government officials”]; see also Berman v. RCA Auto Corp. (1986) 177 Cal.App.3d 321, 324 [“Procedural defenses do not absolutely shield a defendant from liability.”].) While we are cited no authority addressing whether termination on Noerr- Pennington grounds is favorable for malicious prosecution purposes, we agree with Kay that Berman is dispositive.

2024(See Hernandez v. Amcord, Inc. (2013) 215 Cal.App.4th 659, 679 [“the Noerr-Pennington doctrine is a doctrine of substantive law which shields defendants from liability based on their legitimate right to petition government officials”]; see also Berman v. RCA Auto Corp. (1986) 177 Cal.App.3d 321, 324 [“Procedural defenses do not absolutely shield a defendant from liability.”].) While we are cited no authority addressing whether termination on Noerr- Pennington grounds is favorable for malicious prosecution purposes, we agree with Kay that Berman is dispositive.

2021It would also render meaningless any defense of truth or privilege.” ’ ” (Ibid., quoting Fellows v. National Enquirer, Inc. (1986) 42 Cal.3d 234, 245 ; see also Flynn v. Higham (1983) 149 Cal.App.3d 677, 682 ; Lerette v. Dean Witter Organization, Inc. (1976) 60 Cal.App.3d 573, 579 .) 7 Because we hold the absolute privilege applies, we have no occasion to consider whether the statements were made with actual malice or the Noerr-Pennington doctrine applies and do not address the parties’ arguments on these issues.

2021It would also render meaningless any defense of truth or privilege.” ’ ” (Ibid., quoting Fellows v. National Enquirer, Inc. (1986) 42 Cal.3d 234, 245 ; see also Flynn v. Higham (1983) 149 Cal.App.3d 677, 682 ; Lerette v. Dean Witter Organization, Inc. (1976) 60 Cal.App.3d 573, 579 .) 7 Because we hold the absolute privilege applies, we have no occasion to consider whether the statements were made with actual malice or the Noerr-Pennington doctrine applies and do not address the parties’ arguments on these issues.

2021(Service Employees International Union, Local 250 v. Colcord (2008) 160 Cal.App.4th 362, 371 [referring to “the employer’s legal right to recover salary and benefits previously paid to a faithless employee as damages or as restitution in a civil 41 lawsuit for breach of fiduciary duty”; the defendants’ salaries and benefits were “ ‘damages directly flowing from the breach of defendants’ fiduciary duties’ ”; affirming award to the union “of the costs it incurred in providing salary and benefits to [defendant employee] during the time he was organizing a competing union”].) Defendants claim the

2021(Service Employees International Union, Local 250 v. Colcord (2008) 160 Cal.App.4th 362, 371 [referring to “the employer’s legal right to recover salary and benefits previously paid to a faithless employee as damages or as restitution in a civil 41 lawsuit for breach of fiduciary duty”; the defendants’ salaries and benefits were “ ‘damages directly flowing from the breach of defendants’ fiduciary duties’ ”; affirming award to the union “of the costs it incurred in providing salary and benefits to [defendant employee] during the time he was organizing a competing union”].) Defendants claim the