Antitrust and Consumer Protection
Competition: Spring 2014, Vol. 23, No. 1
Content
- Chair's Column
- Do First Amendment Principles Limit the Antitrust Agencies' Ability To Prohibit Enforcement of Standards-essential Patents?
- Does the First Amendment Immunize Google's Search Engine Search Results From Government Antitrust Scrutiny?
- Editor's Note
- First Amendment Protection For Search Engine Search Results
- Judges Speak Out: the Make-or-break Moment of Certifying a Class With Judges Marsha Berzon, Virginia Phillips, John Wiley, and Curtis Karnow
- Landmark Civil Price-fixing Verdicts of 2013: Lessons From the Vitamin C and Urethanes Trials With Trial Counsel and Observers William a. Isaacson, Daniel S. Mason, Joseph Goldberg, and Michael Tubach
- Lcd Redux: Follow-on Class Action and Direct Purchaser Litigation From 2012'S Doj Criminal Prosecutions Views from Trial Experts Bruce Simon, Howard Varinsky, and Robert Freitas
- Masthead
- Regulation of Companies' Data Security Practices Under the Ftc Act and California Unfair Competition Law
- The Irrelevance of the First Amendment To the Modern Regulation of the Internet
- The Market-participant Exception To State-action Immunity From Antitrust Liability
- The Misapplication of Matsushita's Heightened Summary Judgment Standard
- The Supreme Court In Borough of Duryea V. Guarnieri Signals a Retreat From Pre's Broad Deference To the Right To Petition
- Trial By Sample: a Post-game, Locker Room Chat Exploring the McAdams V. Monier Trial: a Roundtable With Trial Counsel Jeffrey Cereghino and William Stern
- Update On California State Antitrust and Unfair Competition Law and Federal and State Procedural Law
- Noerr-pennington: Safeguarding the First Amendment Right To Petition the Government
NOERR-PENNINGTON: SAFEGUARDING THE FIRST AMENDMENT RIGHT TO PETITION THE GOVERNMENT
Stuart N. Senator & Gregory M. Sergi1
I. Introduction
The right to petition the government is guaranteed in the First Amendment: "Congress shall make no law . . . abridging the freedom . . . to petition the Government for a redress of grievances."2 The Noerr-Pennington doctrine3 exists to safeguard that right by conferring immunity on a wide variety of petitioning activities—including petitioning of the legislative, executive, and judicial branches—from subsequent legal liability.4 While the Noerr-Pennington doctrine originated with immunity from claims under the Sherman Act, it extends much more broadly to confer immunity from many other legal claims premised on conduct involving protected petitioning activities.5
The scope of the Noerr-Pennington doctrine arises in a wide range of cases. For example, the issue has arisen recently with respect to cases involving: efforts to lobby local zoning boards;6 litigation over patents and copyrights;7 litigation in foreign jurisdictions;8 "serial" litigation;9 pre-suit demand letters;10 citizen petitions submitted to the U.S. Food and Drug Administration ("FDA");11 proceedings before the U.S. Commodity Futures Trading Commission ("CFTC");12 and challenges to the Master Settlement Agreement ending advertising litigation against tobacco companies.13 These recent cases present a number of recurring issues regarding the application of Noerr-Pennington.