sham exception in New Mexico

2024DeVaney’s probable cause 18 standard is more lenient than the sham exception to Noerr-Pennington, as the Noerr- 19 Pennington doctrine requires the protected conduct be “objectively baseless in the 32 1 sense that no reasonable litigant could realistically expect success on the merits.” 2 Cordova, 2017-NMSC-020, ¶ 28 (internal quotation marks and citation omitted). 3 Yet DeVaney’s standard adequately addresses any concerns about chilling the right 4 of court access through malicious abuse of process claims falling outside of Noerr- 5 Pennington’s rubric. 6 {42} We thus understand our opinions

2024DeVaney’s probable cause standard is more lenient than the sham exception to Noerr- Pennington, as the Noerr-Pennington doctrine requires the protected conduct be “objectively baseless in the sense that no reasonable litigant could realistically expect success on the merits.” Cordova, 2017-NMSC-020, ¶ 28 (internal quotation marks and citation omitted).

2024See 8 id. at 510-11, 515-16 . 9 {26} Considering this historical context, our opinion in Cordova held that the 10 Noerr-Pennington doctrine is not limited to the antitrust context, but more broadly 11 shields “those who engage in conduct aimed at influencing the government, 12 including litigation . . . from retaliation provided their conduct is not a sham.” 13 Cordova, 2017-NMSC-020, ¶ 24 .

2024See id. at 510-11, 515-16 . {26} Considering this historical context, our opinion in Cordova held that the Noerr- Pennington doctrine is not limited to the antitrust context, but more broadly shields “those who engage in conduct aimed at influencing the government, including litigation . . . from retaliation provided their conduct is not a sham.” Cordova, 2017-NMSC-020, ¶ 24 .

2023See id. (explaining the sham test in practice). 6 {35} “We review the denial of a motion to dismiss de novo because such a motion 7 tests the legal sufficiency of the allegations.” Padilla v. Wall Colmonoy Corp., 2006- 8 NMCA-137, ¶ 7, 140 N.M. 630 , 145 P.3d 110 .

2023See id. (explaining the sham test in practice). 6 {35} “We review the denial of a motion to dismiss de novo because such a motion 7 tests the legal sufficiency of the allegations.” Padilla v. Wall Colmonoy Corp., 2006- 8 NMCA-137, ¶ 7, 140 N.M. 630 , 145 P.3d 110 .

2017City of Columbia v. Omni Outdoor Advert., Inc., 499 U.S. 365, 380 (1991) (holding that “[a] sham situation 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” (internal quotation marks and citations omitted)). {40} By requiring an improper motive, this two-step sham exception encompasses a “breathing space” that “overprotects baseless petitioners” which is necessary for the effective exercise of First Amendment rights.

2017City of Columbia v. Omni 8 Outdoor Advert., Inc., 499 U.S. 365, 380 (1991) (holding that “[a] sham situation 9 involves a defendant whose activities are not genuinely aimed at procuring favorable 10 government action at all, not one who genuinely seeks to achieve his governmental 11 result, but does so through improper means” (internal quotation marks and citations 12 omitted)). 13 {40} By requiring an improper motive, this two-step sham exception encompasses 14 a “breathing space” that “overprotects baseless petitioners” which is necessary for the 15 effective exercise of First Amendment righ

2017Thus, just as the malice requirement in a defamation claim against a public official “protects some false statements to ensure that the right of free speech remains robust and unfettered, so too the improper-motive requirement of the sham exception protects some baseless petitions . . . to ensure that citizens may enjoy the right to petition the government through access to the courts without fear of . . . liability.” Tichinin, 99 Cal. Rptr. 3d at 675 . {41} We conclude that the allegations in the complaint are not sufficient to establish an improper motive but rather are differences of opinio

2017Thus, just as the malice requirement in a defamation 17 claim against a public official “protects some false statements to ensure that the right 18 of free speech remains robust and unfettered, so too the improper-motive requirement 27 1 of the sham exception protects some baseless petitions . . . to ensure that citizens may 2 enjoy the right to petition the government through access to the courts without fear 3 of . . . liability.” Tichinin, 99 Cal. Rptr. 3d at 675 . 4 {41} We conclude that the allegations in the complaint are not sufficient to establish 5 an improper motive but rather are di

2017Bill Johnson’s Rests., Inc. v. NLRB, 461 U.S. 731, 743 (1983).

2017Bill 9 Johnson’s Rest.’s., Inc. v. NLRB, 461 U.S. 731, 743 (1983).

2024We do not agree. {24} Avangrid’s argument relies primarily on dicta in the United States Court of Appeals for the Tenth Circuit’s decision in Cardtoons, L.C. v. Major League Baseball Players Ass’n, 208 F.3d 885, 891-92 (10th Cir. 2000) (en banc), abrogation recognized by CSMN Invs., LLC v. Cordillera Metro.