Letting the Cat Out of the Box: Noerr-Pennington Immunity and Consent Decrees

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Thomas Dillickrath, William Lavery, Jan 14, 2014

For over two decades, courts have considered the applicability of the Noerr-Pennington doctrine to immunize an antitrust defendant from liability where the defendant engages in protected First Amendment petitioning activity, including petitioning before a court. Despite this long history, Noerr-Pennington immunity remains a controversial and somewhat untested area of law, often subject to novel questions. These novel questions frequently take place at the interstitial spaces of law and may not be clearly within settled categories of protected activities. Rather, in these situations, a judge may need to engage in an interpretive exercise to consider whether a particular form of petitioning falls within the rubric of protected conduct.

Different judges may approach these issues in different ways; there is no “rulebook” neatly summarizing every form of petitioning and classifying it as a ball or strike. Rather, judges must undertake some interpretive exercise, considering whether the questioned activity more closely resembles protected or unprotected activity. Unlike Ronald Dworkin’s fictional Judge Hercules, the U.S. district courts lack the time and resources to consider the entire spectrum of law to arrive at a single “right answer” in every case. Rather, our real-life jurists have to wade through competing principles to arrive at the best possible answer, and different judges will, of necessity, weigh these considerations differently.

When deciding these difficult questions-so-called “hard cases”-it is our view that in the real world there is often no single right answer, and certain forms of petitioning activity may reside permanently in these interstices, perhaps subject to case-by-case adjudication. A recent case decided in the U.S. District Court for the District of Massachusetts is illustrative. In In re Nexium (Esomeprazole) Antitrust Litigation, the court considered the applicability of Noerr-Pennington immunity to consent decrees. Here, we discuss the court’s well-articulated decision, and also provide an alternative argument that illustrates the ambiguity in doctrinal interpretation.

We do not suggest that the applicability of the Noerr-Pennington doctrine in Nexium was clear, or that, as a general matter, the activity at issue should or should not be protected. Like Schrödinger’s Cat, both alive and dead at the same time, we suggest that in this case it might appear to be both, depending on the interpretation of Noerr-Pennington‘s strictures by the court. That is, much of the ultimate determination is informed by the observer/judge, who will then decide whether the cat is “dead or alive,” i.e., whether the petitioning activity is protected or not protected. While all this may be redolent of the metaphysical, we attempt to disentangle the various arguments below, not to suggest that any particular view is correct, but to support our notion that practitioners must embrace the inherent ambiguity.