A Tale of Two Standards: The Sham Lawsuits Exception

Posted on Mar 26, 2021

Dana Nicole Stowe

Until recently, the circuits seemed to have been in agreement on which standard should be applied in determining whether a defendant falls within the “sham lawsuit” exception under the Noerr-Pennington. The Supreme Court set out in California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 513 (U.S. January 13, 1972) a metric to establish a sham exception. The plaintiff must first show that the litigation in question is objectively baseless; only after the plaintiff establishes this prong will the court move to the subjective prong and examine whether this was an actual attempt to interfere directly with the business relationships of the competitor using governmental mechanisms as an anticompetitive weapon.[1]  Additionally, the Court said it is cognizant of that fact that one claim, which a court or agency may think it baseless may go unnoticed. Yet, a “pattern of baseless, repetitive claims may emerge which leads the factfinder to conclude that the administrative and judicial processes have been abused.”[2]  In cases in which the defendant is accused of bringing a whole series of legal proceedings, the test is not retrospective but prospective:

 

where the legal filings were made, not out of a genuine interest in redressing grievances, but as a part of a pattern or practice of successive filings undertaken essentially harassment? It is immaterial…[t]he relevant issues are brought pursuant to a policy of starting legal proceedings without regard to merits and for the purpose of injuring a market rival.[3]

 

Subsequent cases reaffirmed the semi-holistic test. In Allied Tube & Conduit Corp. v. Indian Head, 486 U.S. 492, 108 S. Ct. 1931 (1988), the Court held that “the Noerr immunity of anticompetitive activity intended to influence the government depends not only on its impact, but also the context and nature of the activity.”[4]  In City of Columbia v. Omni Outdoor Advert., 499 U.S. 365, 111 S. Ct. 1344 (1991), the Court held that “the purpose of delaying a competitor’s entry into the market does not render lobbying activity a sham unless the delay is sought to be achieved only by the lobbying process itself, and not by the governmental action the lobbying seeks.”[5]

The current disagreement between the circuits emerged after the Supreme Court decision in Prof'l Real Estate Inv'rs, Inc. v. Columbia Pictures Indus., 508 U.S. 49, 113 S. Ct. 1920 (1993), in which the Court tightened the exception by stating that the plaintiff must defeat the baseless claims prong before the inquiry of subjective intent.[6] The circuits understood the two-step analysis, but the dispute revolves around the facts differentiating the cases, “implying” two separate standards under which to apply the doctrine: a series of baseless claims.[7] Under this new dichotomy, California Motor would apply to multiple transactions and consider the subjective intent within the first prong. The PRE decision was then interpreted to mean that in a single action, regardless of the number of claims within the single transaction or intent, so long as there were some claims with merit to find probable cause to warrant reasonableness, the exception will not apply.[8]  In P.R. Tel. Co. v. San Juan Cable LLC, 874 F.3d 767 (1st Cir. 2017), the First Circuit created a split by holding that P.R.E was meant to be read not as creating a separate standard for single or multiple suits; in finding two separate standards, one that utilizes a holistic approach, undermines the test as a whole.[9] The First Circuit was the only court refusing to create two standards until the Seventh Circuit joined them in 2020—the decision which is the main focus of this discussion.

The Seventh Circuit held that PRE did not displace California Motor nor did it create a separate test. This interpretation is misguided, however. Furthermore, the court’s application of the test was precluded by its determination that the proceeding was legislative rather than adjudicative at the outset. Two standards do exist and the Seventh Circuit erred in its decision. The only test that should be applied to the sham lawsuits exceptions is California Motors, but should be modified to account for the preclusive effects of the test as evinced in U.S. Futures Exchange.

First, the courts should evaluate each claim to see if there was an objective abuse of process using the calculated range offered by the article. This range will provide a definitive number range which will determine the level of scrutiny to be used for the second prong. Second, the court should look for the subjective intent to cause harm to the competitor. Third, the court should look to whether the proceeding was legislative or adjudicative. If and only if the proceeding is deemed to have acted in a legislative capacity, the court should take this under consideration as a mitigating circumstance. This test will prove valuable because under the current regime, determining the type of proceeding at the outset theoretically precludes any evaluation of subjectivity and undermines the value of the test of as whole, since it is nearly impossible for the plaintiff to show legislative claims as objectively meritless.[10] By using a truly holistic test, with definitive standards, antitrust regulation and the sham exception doctrine will allow for more consistent outcomes.

 

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[1] California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 513 (U.S. January 13, 1972).

[2] Id.

[3]  Primetime 24 Joint Venture v. NBC, 219 F.3d 92, 101 (2d Cir. 2000) (quoting USS-POSCO Indus. v. Contra Costa Cty. Bldg. & Constr. Trades Council, 31 F.3d 800, 811 (9th Cir. 1994) interpretation of Professional Real Estate Investors, Inc. v. Columbia Pictures Indus., 508 U.S. 49, 60, 123 L. Ed. 2d 611, 113 S. Ct. 1920 (1993).

[4] Court refused to let antitrust defendants immunize otherwise unlawful restraints of trade by pleasing a subjective intent to seek favorable legislation or to influence governmental action. See Allied Tube & Conduit Corp. v. Indian Head, 486 U.S. 492, 495 (U.S. June 13, 1988); cf., Prof'l Real Estate Investors, Inc. v. Columbia Pictures Indus., 508 U.S. 49, 59 (U.S. May 3, 1993)

[5] Court rejected argument that an antitrust plaintiff could prove a sham merely by showing that its competitor’s purposes were to delay the plaintiff’s entry into the market; such inimical intent may render lobbying inappropriate but does not deem it a sham per se. See City of Columbia v. Omni Outdoor Advert., 499 U.S. 365, 111 S. Ct. 1344 (1991).

[6] Prof'l Real Estate Investors, Inc. v. Columbia Pictures Indus., 508 U.S. 49, 60 (U.S. May 3, 1993).

[7] See Hanover 3201 Realty, LLC v. Vill. Supermarkets, Inc., 806 F.3d 162, 180 (3d Cir. N.J. November 12, 2015) (Third Circuit agreeing with the approach adopted by the Second, Fourth, and Nineth Circuit).

[8] See supra note 6.

[9] Defendant petitioned court with twenty-four filings or motions in one single proceeding. See P.R. Tel. Co. v. San Juan Cable LLC, 874 F.3d 767, 769 (1st Cir. P.R. October 31, 2017).

[10] See generally, U.S. Futures Exch., L.L.C. v. Bd. of Trade, 953 F.3d 955 (7th Cir. 2020) (holding that the decision in Prof’l Real Estate did not create a separate standard under which to examine the sham exception, nor did it specify it is only applicable under single proceedings, and stating that “proving sham petitioning in a legislative context like this one is virtually impossible….”)