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CHAPTER VI
THE EXCEPTIONS TO THE IMMUNITY
Not all activities relating to “petitioning” the government—even
among those activities genuinely aimed at seeking some government
action—qualify for Noerr-Pennington protection. Instead, the Supreme
Court in Allied Tube & Conduit Corp. v. Indian Head1 cautioned that
“the applicability of Noerr immunity[] varies with the context and nature
of the activity” at issue.2 Noerr-Pennington is not a seamless blanket of
protection that covers all contact with the government. Courts,
commentators, and the Federal Trade Commission (FTC) have identified
holes or exceptions, or situations simply not reached by Noerr-
Pennington, based on the “source, context, and nature” of the particular
circumstances in question.3 This chapter considers the exceptions and
exclusions from Noerr-Pennington protection.
A. The “Misrepresentation” or Corruption Exception
One possible area for exceptions to antitrust immunity for efforts to
influence the government can be found in those efforts that are tainted by
deception, corruption, or other misconduct. The Supreme Court has made
it clear that the First Amendment does not insulate one from claims for
libel, slander, and other intentional falsehoods.4 But, from its inception,
the Noerr doctrine has never been circumscribed by a universal
exception for misconduct.5
1. 486 U.S. 492 (1988).
2. Id. at 499.
3. Id.
4. See, e.g., McDonald v. Smith, 472 U.S. 479, 482-85 (1985); Garrison v.
Louisiana, 379 U.S. 64, 75 (1964).
(1972) (“Misrepresentations, condoned in the political arena, are not
immunized when used in the adjudicatory process.”); Prof’l Real Estate
Investors, Inc. v. Columbia Pictures Indus., 508 U.S. 49, 61 n.6 (1993)
(declining to determine “whether, and, if so, to what extent Noerr permits
104 The Noerr-Pennington Doctrine
When the Supreme Court first articulated antitrust immunity in
Noerr for “petitioning” activity aimed at influencing the government, the
specific conduct in question involved “unethical and deceptive
methods.” 6 Even though the defendants in Noerr had “deliberately
deceived the public and public officials,” the Court later observed,
“deception, reprehensible as it is, can be of no consequence so far as the
Sherman Act is concerned,” at least in the situation at issue.7 Following
the pattern set in Noerr, the Court in City of Columbia v. Omni Outdoor
Advertising 8 declined to recognize a conspiracy exception to Noerr
immunity for collusion between private actors and representatives of the
government whom they were seeking to influence.9 In Allied Tube, the
Court rejected an “improper means” test as an alternative basis for
invoking the “sham” exception to Noerr immunity. 10 Finally, in
Professional Real Estate Investors v. Columbia Pictures Industries
(PRE),11 the Supreme Court expressly declined to decide “whether and,
if so, to what extent Noerr permits the imposition of antitrust liability for
a litigant’s fraud or other misrepresentations.”12
The Supreme Court has made clear, however, that it does not
uniformly and universally reject an exception to Noerr immunity for
misrepresentations, corruption, or other misconduct. For example, not
long after Noerr, the Court observed in California Motor Transport v.
the imposition of antitrust liability for a litigant’s fraud or other
misrepresentations”); Cheminor Drugs v. Ethyl Corp., 168 F.3d 119, 124
(3d Cir. 1999) (surveying case law and concluding “a material
misrepresentation that affects the very core of a litigant’s . . . case will
preclude Noerr-Pennington immunity”); Kottle v. Nw. Kidney Ctrs., 146
F.3d 1056, 1060 (9th Cir. 1998) (where misrepresentations to a court
“deprive the litigation of its legitimacy” they can cause a party to lose
Noerr-Pennington immunity).
6. Allied Tube & Conduit Corp. v. Indian Head, 486 U.S. 492, 499-500
(1988) (citing E. R.R. Presidents Conference v. Noerr Motor Freight, 365
U.S. 127, 140-41 (1961)).
7. City of Columbia v. Omni Outdoor Adver., 499 U.S. 365, 383-84 (1991)
(quoting Noerr, 365 U.S. at 145).
8. 499 U.S. 365 (1991).
9. Id. at 382-84.
10. Allied Tube, 486 U.S. at 507 n.10.
11. 508 U.S. 49 (1993).
12. Id. at 61 n.6.
