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CHAPTER I
THE NOERR-PENNINGTON DOCTRINE DEFINED
Those who petition government for redress are generally immune from
antitrust liability.
—Professional Real Estate Investors v. Columbia Pictures Industries,
508 U.S. 49, 56 (1993).
A. The Definition of the Noerr-Pennington Doctrine
This book discusses the antitrust defense known most commonly as
the “Noerr-Pennington doctrine” after the first two cases that define the
doctrine.1
The Noerr-Pennington doctrine is a judicially-created policy that
(a) shields an antitrust defendant from liability for competitive injuries
(b) resulting from concerted or individual petitioning conduct (c) that is
reasonably calculated or genuinely intended to petition government for
redress (d) from government decision-makers. We discuss each of these
requirements in turn.
Requirement (a) – The doctrine eliminates liability for injuries
resulting from petitioning conduct. This may be referred to as the
“causation” element of Noerr-Pennington. Antitrust liability lies only
when conduct causes a competitive injury, and the definition makes clear
that any injury caused by petitioning conduct is covered, whether it flows
from the petitioning process or from the government’s resulting decision
to grant the petition: “To be sure, private parties may have influenced or
persuaded the government to act, but the government’s decision to act
reflects an independent governmental choice, constituting a supervening
1. E. R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127
(1961); United Mine Workers of Am. v. Pennington, 381 U.S. 657
(1965).
