Making Sense of Antitrust Petitioning Immunity
Making Sense of Antitrust Petitioning Immunity
Follow this and additional works at: http://scholarship.law.berkele y.edu/californialawreview Recommended Citation Einer Elhauge, Making Sense of Antitrust Petitioning Immunity, 80 Cal. L. Rev. 1177 (1992). Available at: http://scholarship.law.berkele y.edu/californialawreview/vol80/iss5/2
Making Sense of Antitrust
Courts have struggledto produce a coherentdoctrinegoverning when
petitioners,such as lobbyists and litigants,are immune from
antitrustliability. A variety ofapparentlyconflictingexceptions and
requirementspermeate Supreme Court decisions in the field. In this Article, Professor
Elhaugeutilizes afunctionalprocessapproachto identifyfactors the Court
has implicitly consideredin determining whether immunity applies. These
factors turn critically on the incentive structure of the relevant
decisionmaker: in particular,on whether the decisionmakerwho imposed the
restraint at issue had an objective financial interest in the restraint's
anticompetitive consequences. Restraintsproduced by such a financially
interested decisionmakingprocess, the Article argues, are and should be
denied antitrustimmunity unless the activity producing the restraintdoes
not involve market behavior and is not separablefrom otherwise valid
input into a governmentalprocess of decisionmaking. These functional
process considerationsare shown to explain the outcome in every Supreme
Court case adjudicatingantitrustpetitioning immunity issues. Adherence
to a functionalprocess approach,ProfessorElhauge concludes,
willfacilitate resolution of many questions and anomalies regardingpetitioning
immunity doctrineandpermit a more accurateunderstandingof the
relationshipbetween antitrustpetitioningimmunity and the relateddoctrine of
state action immunity.
For most of its history, the doctrine immunizing petitioning activity
from antitrust liability has perversely coupled a sweeping general
immunity with equally sweeping exceptions. This period was dominated by a
trilogy of cases-Noerr,' Pennington,2 and California Motor -- that
embraced this seemingly simple principle: "Joint efforts to influence
public officials do not violate the antitrust laws even though intended to
t Professor of Law, Boalt Hall School of Law, University of California, Berkeley. A.B. 1982,
Harvard College; J.D. 1986, Harvard Law School. I am grateful for comments from Gary Minda
and Stephen Calkins and financial support from the Boalt Hall Fund and the John M. Olin
1. Eastern R.R. Presidents Conference v. Noerr Motor Freight, 365 U.S. 127 (1961).
2. United Mine Workers v. Pennington, 381 U.S. 657 (1965).
3. California Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508 (1972).
eliminate competition."4 But this pristine principle was pockmarked
with exceptions. Immunity did not apply when the efforts to influence
public officials were a "sham," 5 a concept stretched to include "forms of
illegal and reprehensible practice," even if they succeeded in influencing
governmental action.' Nor did the immunity apply to petitioning that
involved "commercial activity."'7 And the Court's dicta recognized a
"conspiracy" exception, which denied immunity when a private actor
conspired with the government to restrain trade.8
Perhaps embarrassed by its handiwork, the Court essentially
ignored the issue for the sixteen years following CaliforniaMotor, leaving
the lower courts and litigants to struggle with the resulting doctrinal
hodgepodge. The doctrine became increasingly unstable. The sham
exception turned into a catchall to cover whatever forms of petitioning
adjudicating courts deemed "improper. ' The commercial exception
was sometimes applied and sometimes rejected in cases where either the
petitioning or the desired governmental action was deemed to be
"commercial," a term that remained ill-defined.' 0 Even more open-ended was
the conspiracy exception, for a conspiracy of sorts could be alleged
whenever petitioning was successful. And some lower courts recognized other
vague exceptions for petitioning that influenced policy "implementation"
rather than policy making,1 1 and for when the activity was not "direct"
petitioning but "preliminary" to it. 2
The problem was more than a failure to set forth clear general rules
for defining the scope of the immunity. The larger problem was that, as
the exceptions were defined, adjudication consisted of pasting a
conclusory label on the petitioning activity at issue. Implicit factors and
policy judgments no doubt guided many courts in deciding whether a
given activity was improper and a "sham," and in deciding whether the
commercial, conspiracy, and other exceptions applied. But these factors
and policy judgments were not articulated. Consequently, the process of
case-by-case adjudication did not redress the absence of general rules by
producing precedents that could provide useful guidance. Instead, it
produced doctrinal inconsistency,1 3 prolonged uncertainty, 4 and
Dissatisfied with this doctrinal muddle, the Supreme Court has in
the last four years issued a new trilogy of cases-Allied Tube, 16 Trial
Lawyers, 17 and Omni 1 8 -that casts aside the old trilogy's uneasy
compromise between a broad immunity and its open-ended exceptions. This
new trilogy drastically shrinks the sham and conspiracy exceptions. The
sham exception, the Court has made clear, no longer includes improper
petitioning activities if those activities are genuinely intended to influence
the government.1 9 And the conspiracy exception has been rejected, with
the possible exception of cases where the government is acting as a
At the same time, the new trilogy circumscribes the sweep of the
affirmative immunity. It emphasizes that "the Noerr doctrine does not
extend to 'every concerted effort that is genuinely intended to influence
governmental action.' "21 As if to underscore the point, two of the new
cases denied immunity to petitioning efforts that were not only genuinely
intended to influence governmental action, but successful in doing so.22
The scope of antitrust petitioning immunity now "depends ... on the
source, context, and nature of the anticompetitive restraint at issue."23
The Court's new focus on the "source, context, and nature" of
restraints has been roundly criticized for compounding instead of
clarifying the doctrinal confusion.24 And it cannot be denied that this new
CALIFORNIA LAW REVIEW[l
mulation is not by itself terribly informative. Which sources, contexts,
and natures provide immunity, and which do not? The new trilogy
defines some of the relevant factors, but leaves others open.
What the new doctrinal framework does do, which the old doctrinal
framework did not, is encourage courts to articulatethe factors and
policy judgments underlying their decisions. This might, in the long run,
produce precedents that can provide greater doctrinal coherence. The
new doctrinal framework also invites legal academics to see what factors
and policy judgments we can identify in the cases to bring them into
some predictable order.
The time has come, in short, to see whether we can make any more
sense of antitrust petitioning immunity after the new trilogy than we
could after the old one. I argue that we can under a functional process
approach. Differences in the incentive structures underlying the
decisionmaking processes that produce the restraints explain and justify why
some restraints receive immunity and others do not. This argument
builds on my prior article describing the process ideals underlying
antitrust state action immunity.2" I conclude that, as with state action
immunity, petitioning immunity reflects the Court's implicit functional
process views about how best to set the boundaries between the
competitive and governmental processes.
A more precise statement of the conclusion would be this: under the
Court's implicit process view, antitrust immunity does not apply-and
the restraint at issue must be subjected to a competitive process regulated
by antitrust ground rules-if the decisionmaker who imposed the
restraint has an objective financial interest in the restraint's
anticompetitive consequences, unless the activity producing the restraint neither
involves market behavior nor is separable from otherwise valid input into
the governmental process. Explaining the concrete meaning of this
conclusion, and how it conforms to a coherent functional process position,
will be the task of this Article.
Part I analyzes the Supreme Court's opinions and the doctrinal
difficulties they produce in order to establish the need to formulate a policy
foundation for the doctrine. Part II derives the basic functional process
view that underlies the results in the cases, employs that view to resolve
some doctrinal anomalies, and defends it against the interest group
theory critique. Part III assesses the special issues posed by market
restraints that coerce governmental action, and explains why the Court
looks at objective incentives rather than subjective motives. Part IV then
tackles the tricky issues posed by private action that both directly
supra note 10, 206.2, at 89; Calkins, supra note 9, at 327, 337; Gary Minda, Interest Groups,
Political Freedom, and Antitrust: A Modern Reassessment of the Noerr-Pennington Doctrine, 41
HASTINGS L.J. 905, 977-78 & n.264 (1990).
25. Einer R. Elhauge, The Scope of Antitrust Process, 104 HARV. L. REV. 667 (1991).
restrains trade and provides noncoercive input into the governmental
process. Finally, Part V explores the limited circumstances in which
petitioners can be liable for restraints imposed by governmental
THE OPINIONS AND THEIR RESULTING DOCTRINAL
Antitrust petitioning immunity began with the famous case of
Eastern RailroadPresidentsConference v. NoerrMotor Freight2.6 Noerr
concerned a publicity campaign conducted by a group of railroads
against truckers. The campaign had, and was intended to have, two
main effects. First, it influenced government officials to enact or retain
laws that made it hard for truckers to compete with the railroads.27
Second, the campaign's adverse publicity directly impaired relations
between truckers and their customers.2 8
Justice Black's opinion for the Court quickly concluded that the
defendant railroads were immune from liability for the first effect, 29
which would seem to follow from antitrust's immunity for state action.
The more interesting issue was whether the defendant should have
immunity for the second direct effect. Without the aim to influence
governmental action, a conspiracy to falsely disparage a competitor and
hamper its customer relations would normally be subject to antitrust
liability. But the Court decided that the defendants should be immune
from liability for this effect because it was "incidental" to "political"
activities genuinely intended to influence the government.30
Along the way, the Noerr Court made two things clear. First, it did
not matter that the defendants were motivated by their financial interest
in what law would prevail.3 1 Second, it did not matter that the methods
of political lobbying were unethical or deceptive.32
But the Court's opinion left other issues unresolved. Questions were
raised by the Court's intimations that immunity might not apply if the
activities used to influence the government involved not "political
activity" but "business activity. '33 How precisely could one tell the
difference? Is there immunity for activity that is neither "political" nor
"business" in nature? The opinion did not address those questions.
The case also raised questions about the scope of the immunity for
direct effects incidental to genuine political petitioning. What does it
take for these direct effects to be considered "incidental" to the
petitioning? Is it enough that the effects flowed from efforts designed to influence
the government? Or is the incidental test tantamount to a least
restrictive alternative test, whereby the defendants are immune for direct
injuries only if they have chosen the method of petitioning that imposes the
least direct injury?
The Supreme Court next returned to the issue of antitrust
petitioning immunity in ContinentalOre Co. v. Union Carbide & Carbon Corp.3 4
This case is usually left out of the Noerr trilogy,3 5 no doubt because it
contains only a short aside on the issue, but it nonetheless established an
The defendant in ContinentalOre was a producer of vanadium. The
defendant's corporate subsidiary had been appointed an agent of the
Canadian government and given "discretionary agency power to
purchase and allocate to Canadian industries all vanadium products."36
The defendant sought immunity under Noerr for its efforts to have its
subsidiary use this governmental authority to exclude the defendant's
competitors from selling vanadium on the Canadian market. The
Supreme Court rejected this argument, concluding that the defendant's
actions were "private commercial activity" outside the scope of Noerr.17
Unfortunately, this conclusion was unadorned with reasoning.
Justice White's laconic opinion for the Court did not bother to explain
what made the activities private commercial activity. The subsidiary
influenced by the defendant was a governmental agent exercising
governmental authority. And while the governmental authority did involve the
purchase and resale of vanadium, this authority was essentially
regulatory, designed to set a price ceiling during wartime and to allocate the
metal in a non-market fashion in order to further strategic war aims.
Why is this "commercial" rather than "political" or "regulatory"?
United Mine Workers v. Pennington3, 8 the next case in the official
trilogy, eliminated one possible answer to this question. Pennington
involved, among other things, defendants' petitioning efforts to influence
coal purchases by the Tennessee Valley Authority (TVA) to the
detriment of the defendants' competitors. The Court concluded that such an
34. 370 U.S. 690 (1962).
35. For sources including only Noerr,Pennington, and CaliforniaMotor in the original trilogy,
see, e.g., Milton Handler & Richard A. De Sevo, The Noerr Doctrineand Its Sham Exception, 6
CARDOZO L. REv. 1, 3-7 (1984); Hurwitz, supra note 10, at 78 & n.42.
36. Continental Ore, 370 U.S. at 703 n. 11; see id. at 695, 702-04.
37. Id. at 707-08.
38. 381 U.S. 657 (1965).
effort to influence "public officials" was immune from antitrust
liability.39 Thus, whatever else suffices to constitute commercial activity
within the commercial exception, efforts to influence the government's
actions as a market participant do not.
The puzzling feature of Pennington is that it distinguished
ContinentalOre on the ground that there the influenced agent "was not a
public official but the wholly owned subsidiary of an American
corporation alleged to be a principal actor in the conspiracy."'' But being a
public official and being a subsidiary are not mutually exclusive. And the
Court opinion, another Delphic effort by Justice White, does not explain
how the Court squared its conclusion that Continental Ore did not
involve a "public official" with the fact that the agent there exercised a
governmental authority delegated to it by the Metals Controller of the
In the end, then, Pennington provided no useful criteria for
determining how to apply the commercial exception. Moreover, by stressing
that the influenced public official in Pennington was not alleged to be a
"co-conspirator," 4 2 the opinion spawned what would become a
troublesome and ill-defined conspiracy exception.
The next relevant case is, like Continental Ore, not considered part
of the Noerr trilogy, no doubt because it does not even mention Noerr.
Nonetheless, in Walker Process Equipment, Inc. v. Food Machinery &
Chemical Corp.4 3 the Court established the important principle that
obtaining administrative and judicial action through fraudulent
petitioning could sometimes result in antitrust liability.
The defendant in Walker Process allegedly obtained a patent by
denying knowledge of anyone else using the invention when in fact the
defendant knew the plaintiff had been using it.' The plaintiff sued under
the Sherman Act, alleging that the existence and enforcement of the
patent had deprived the plaintiff of business it would have otherwise
The Court held that, if true, these allegations would establish a
Sherman Act violation. An implicit holding was thus that Noerr
immunity did not apply even though the defendant's actions, fraudulent
though they may have been, were definitely intended to secure
governmental action. Indeed, those actions succeeded in obtaining at least
administrative action. But because the Court never directly addressed
Noerr, the decision left unclear why Noerr immunity did not apply. Did
39. Id. at 670.
40. Id. at 671 n.4.
41. See ContinentalOre, 370 U.S. at 702 n. 11.
42. Pennington, 381 U.S. at 671 & n.4.
43. 382 U.S. 172 (1965).
44. Id. at 174.
the use of fraud make the efforts to procure governmental action a
"sham"? Was immunity denied because the petitioning activity did not
seek "political" action but rather sought administrative and judicial
adjudication of a factual issue?
These questions provide the backdrop for the final case in the Noerr
trilogy: California Motor Transport Co. v. Trucking Unlimited4.5 In
California Motor, the defendants allegedly conspired to institute legal
proceedings to prevent their competitors from acquiring operating rights.
The defendants' strategy was allegedly to harass their competitors by
instituting these proceedings "'with or without probable cause, and
regardless of the merits of the cases.' 46 This did not mean that all, or
even most, of the proceedings were baseless. On the contrary, the
defendants had won twenty-one out of forty cases.4 7 Rather, the crux of
the complaint was that the defendants were instigating litigation
automatically, without regard to whether the litigation had merit or not, in
order to impose costs and delays on their competitors.
The California Motor Court first answered one of the questions
raised in Walker Process by making clear that Noerr immunity applied
not only to efforts to influence legislative and executive action, but also to
efforts to influence administrative and judicial action.4" Noerr immunity
was, in other words, not an immunity limited to "political activities," but
rather a general immunity for efforts to petition any of the branches of
But the California Motor Court coupled this broadening of the
immunity with a broadening of the sham exception. Given that the
defendants' success rate was over fifty percent, it could not be denied that
the suits were genuine efforts to influence adjudicators.4 9 And a sham
exception truly limited to situations where no genuine effort was made to
influence the government could not explain the decision in Walker
Process. Justice Douglas' breezy opinion for the Court superficially
reconciled this tension by asserting that the sham exception encompassed
"forms of illegal and reprehensible practice which may corrupt the
administrative or judicial processes." 50 As examples, the opinion cited
lying to an adjudicator or patent officer, conspiring with a licensing
authority, and bribing a purchasing agent.5" More specifically, the Court
45. 404 U.S. 508 (1972).
46. Id. at 512.
47. Trucking Unlimited v. California Motor Transp. Co., 1967 Trade Cas. (CCH) 72,298, at
84,744 (N.D. Cal.), rev'd on othergrounds, 432 F.2d 755 (9th Cir. 1970), aff'd on other grounds, 404
U.S. 508 (1972).
48. See CaliforniaMotor, 404 U.S. at 510.
49. Cf Noerr,365 U.S. at 144 (holding the sham limitation inapplicable because the challenged
"effort was not only genuine but also highly successful").
50. CaliforniaMotor, 404 U.S. at 513.
51. Id. at 512-13.
concluded that the activity at issue-a pattern of making repetitive
claims regardless of the merits in order to impose costs on the other
litigant-constituted a sham.52
While one can sympathize with the Court's desire to deny antitrust
immunity to such abusive practices, its use of the sham exception to
accomplish the result was quite unfortunate. Having deprived the word
"sham" of its natural meaning and of the meaning assigned to it by
Noerr, it became nothing more than a catchall for whatever activities
courts deemed improper.
To be sure, the Court made clear that political activities needed a
wider berth of immunity, and that activities deemed a sham in the
adjudicative process would not necessarily be deemed a sham in the political
process.5 3 But other than establishing that antitrust petitioning
immunity varied with the context of the petitioning activity, this clarified very
little. And it hardly provided the sort of clear guidance to which First
Amendment activities are normally entitled because of concern that legal
ambiguity will produce a chilling effect.
Having left the lower courts to grapple unsuccessfully with this
doctrinal morass for sixteen years, the Court returned to the issue four years
ago in Allied Tube & Conduit Corp. v. Indian Head, Inc.54 In that case,
steel producers packed the annual meeting of a private standard-setting
association with employees and spouses in order to secure a majority vote
for a version of the association's electrical code that excluded plastic
conduit manufactured by competitors. The question was whether antitrust
petitioning immunity should apply because the association's electrical
code was routinely adopted into law by state and local governments.
The Court could have, as Justice White's dissent did, simply applied
the general immunity with open-ended exceptions approach, and made a
conclusory decision that the conduct either was (or was not) a "sham."5 5
Instead, in an opinion by Justice Brennan, the Court abandoned that
approach, explicitly rejecting the proposition that the sham exception
covered genuine efforts to influence the government through "improper
means" or "flagrant abuse."5 6 As the Court noted, this loose use of the
word "sham" rendered it no more than a contentless label, which
obscured the factors underlying court decisions.5 7 Indeed, a telling
illus52. See id.; see also Otter Tail Power Co. v. United States, 410 U.S. 366, 380 (1973) (stating
that "repetitive lawsuits carrying the hallmark of insubstantial claims" fall within the sham
53. CaliforniaMotor, 404 U.S. at 512.
54. 486 U.S. 492 (1988).
55. See id. at 516 (White, J., dissenting).
56. 486 U.S. at 508 n.10.
57. See id. Claims of a "sham" had become so devoid of meaning that courts were holding
tration of the problem was ironically provided by White's dissent and the
leading appellate proponent of this open-ended interpretation of the
sham exception: each had reached directly contrary conclusions about
the conduct in Allied Tube-one concluding it was a sham, and the other
concluding it was not-without ever identifying the factors that led to
their different conclusions.5 8
From now on, the Allied Tube Court stressed, the sham exception
would only cover "activity that was not genuinely intended to influence
governmental action."5 9 Unfortunately, with the sham exception
properly limited, the Court had no ready doctrinal tools for grappling with
the case at hand.
The Court could not deny that the effort to influence government
action was "genuine," as the association's code was widely adopted into
legislation by state and local governments.' Nor could it claim the
direct effects on the Code were not "incidental" to the petitioning efforts.
Influencing the association's code was probably the "most effective
means" of influencing legislation on the topic, and the effects of the
"widespread" legislative adoption likely dwarfed the direct effects of the
association code on the marketplace. 6
At the same time, the case at hand involved firms exercising
decisionmaking authority to formulate an association product standard that
would in effect bind the association's members in an agreement to
boycott a product of the firms' competitors. It was inconceivable that such a
horizontal agreement about market behavior could be immunized from
antitrust liability solely because the government might be persuaded by
the example to adopt the same market restraint into law itself. If
antitrust petitioning immunity applied to concerted market behavior that
genuinely influenced the government, then a variety of bizarre results
would follow: "[C]ompetitors would be free to enter into horizontal
price agreements as long as they wished to propose that price as an
appropriate level for governmental ratemaking or price supports.
Horizontal conspiracies or boycotts designed to exact higher prices or other
economic advantages from the government would be immunized .... ,,62
The Court was thus faced with the difficult task of erecting a new
doctrinal edifice to replace the shaky one it had razed. It attempted to do
so by declaring that antitrust petitioning immunity depended on the
that alleging a sham failed to provide a defendant with adequate notice of a plaintiff's claim. See
AREEDA & HOVENKAMP, supra note 10, %203.4b, at 55-56 (collecting cases).
58. Compare Sessions Tank Liners v. Joor Mfg., 827 F.2d 458, 465 (9th Cir. 1987) (sham),
vacated, 487 U.S. 1213 (1988), with Allied Tube, 486 U.S. at 516 (White, J. dissenting) (not a sham).
59. Allied Tube, 486 U.S. at 508 n.10; see also id. at 500 n.4. This position was reaffirmed in
City of Columbia v. Omni Outdoor Advertising, 111 S. Ct. 1344, 1354 (1991).
60. See Allied Tube, 486 U.S. at 502.
61. Id. at 502-03.
62. Id. at 503 (citations omitted).
"source, context, and nature" of the anticompetitive restraint sought to
The rule Allied Tube laid down was relatively straightforward when
the source of the restraint was "valid governmental action."" In such a
case, the immunity of those urging the governmental action is
"absolute."6 Thus, the defendants in Allied Tube had no liability for the
market injuries resulting from the governmental adoption of the association's
Complexities arose, however, where the direct source of the restraint
was "private action," in the sense that the restraint would occur whether
or not the government took action. Antitrust petitioning immunity
applied to such private restraints only if the restraint was (1) "incidental"
to a (2) "genuine" and (3) "valid" effort to influence the government. 67
In Allied Tube, as noted above, the "incidental" and "genuine" prongs of
this three-part test were amply satisfied. The determinative question was
whether the effort was "valid." Such determinations of validity, the
Court stated, depend on the context and nature of the activity.6
In the case at hand, the Court concluded, the context and nature of
defendants' conduct made it "commercial activity" that did not enjoy
antitrust petitioning immunity. 9 It based this conclusion on two factors:
(1) the conduct occurred in the context of a private standard-setting
association where the normal rules of legality are provided by antitrust law
itself; and (2) the nature of the conduct was exercising decisionmaking
authority over market behavior, namely agreeing not to trade in plastic
This was certainly an improvement on the loose Continental Ore
commercial exception; at least some factors sufficient to lose immunity
had been spelled out. But unfortunately, this approach did not answer
the question that the dissent and others wanted answered: what other
contexts and natures would also be denied immunity? Because the Court
did not list the contexts and natures that did and did not merit
immunity, its approach left the scope of petitioning immunity ill-defined.
Worse, because the Court did not articulate why the nature and context
of the conduct in Allied Tube meant it deserved no immunity, it provided
no underlying policy to help guide the resolution of doctrinal ambiguities
The next case in the new trilogy was FTC v. Superior Court Trial
63. Id. at 499.
66. Id. at 498 & n.2, 500.
67. Id. at 499-500 & n.4.
68. Id. at 499-500.
69. Id. at 505-07 & n.10.
70. Id. at 506-07.
Lawyers Ass'n.71 In this case, an association of trial lawyers had
collectively agreed not to represent indigent criminal defendants until the
District of Columbia increased the fees it paid the lawyers for such
representation. In response the city agreed to pay the fees the boycotters
requested. 72 The trial lawyers claimed antitrust petitioning immunity for
their boycott on the ground that it was aimed at securing governmental
The Supreme Court denied immunity. Justice Stevens' opinion for
the Court offered the following explanation:
[I]n the Noerr case the alleged restraint of trade was the intended
consequence of public action; in this case the boycott was the means by which
[the trial lawyers] sought to obtain favorable legislation. The restraint of
trade that was implemented while the boycott lasted would have had
precisely the same anticompetitive consequences during that period even if
no legislation had been enacted. In Noerr, the desired legislation would
have created the restraint on the truckers' competition; in this case the
emergency legislative response to the boycott put an end to the
This would be more illuminating but for the fact that the Court's
characterization of Noerr was inaccurate. As we saw in Section I.A,
Noerr did not involve only restraints caused by public action. The
publicity campaign had also restrained trade directly by impairing relations
between truckers and their customers.74 This restraint was a
consequence of private action rather than public action in precisely the sense
the TrialLawyers Court meant: it would have had the same
anticompetitive effects whether or not the government had acted. 75 Thus, the
means/consequence distinction did not explain the different holdings in
Noerr and TrialLawyers.
The only other reasoning Justice Stevens offered for the Court's
conclusion was Allied Tube's dicta that horizontal price-fixing, boycotts, or
output restrictions could not be immunized even if genuinely intended to
influence governmental action.7 6 This provided no general delineation of
the scope of antitrust petitioning immunity. But it did make two
important contributions to the doctrine. First, it elevated this dicta to holding.
Second, it established that collective decisionmaking over market
behavior (the second Allied Tube factor) would, at least if used as the means to
influence governmental action, suffice to deprive the activity of immunity
71. 493 U.S. 411 (1990).
72. Id. at 418.
73. Id. at 424-25.
74. Eastern R.R. Presidents Conference v. Noerr Motor Freight, 365 U.S. 127, 129, 133, 142
75. Id. at 133 (stating that the campaign "injured the truckers in ways unrelated to the passage
or enforcement of law").
76. TralLawyers,493 U.S. at 425 (quoting Allied Tube & Conduit Corp. v. Indian Head, Inc.,
486 U.S. 492, 503 (1988)).
even if the activity occurred in a public, highly political context.77
The last case in the new trilogy is City of Columbia v. Omni Outdoor
Advertising." The defendant, the jury found, had conspired with
municipal officials to obtain the enactment of zoning ordinances that restricted
billboard construction by the defendant's competitor.
The Court decided that, with the possible exception of a case where
the government acted as a market participant, no conspiracy exception
should be recognized to antitrust's immunity for either state action or
petitioning activity.7 9 A general conspiracy exception, the Court
reasoned, would swallow the immunity because any governmental action
could be said to result from an agreement between government officials
and those who petitioned for the action. 0
This helped clarify the scope of the conspiracy exception.
Unfortunately, Justice Scalia's opinion for the Court muddied the waters when it
came to discussing the plaintiff's argument that the sham exception
should apply. The opinion stated that the sham exception "encompasses
situations in which persons use the governmentalprocess-as opposed to
the outcome of that process-as an anticompetitive weapon."" But, like
the means/consequence distinction put forth in TrialLawyers, this
reasoning is unsatisfactory: it does not explain why immunity applied in
Noerr when the process of petitioning the government was used to inflict
Justice Scalia's opinion tried to avoid this problem through two
maneuvers. The first was to imply that the defendant's motives were
determinative. The opinion stated, "Although [the defendant]
indisputably set out to disrupt [the plaintiff's] business relationships, it sought to
do so not through the very process of lobbying.., but rather through the
ultimate product of that lobbying and consideration ....
But these motives are not mutually exclusive. In Noerr and Allied
Tube, the defendants were acknowledged to have both the motive of
securing governmental action and the motive of directly harming
competitors through the acts of petitioning.8 3 One suspects that had the jury
been asked to make findings on the issue, the Omni defendants might
also have been found to have such mixed motives.
In any event, most petitioners are unlikely to have the purity of
77. The Court also established that it would suffice if the collective market behavior was a per
se antitrust violation: possession ofmarket power was not necessary to lose antitrust immunity. Id.
78. Ill S. Ct. 1344 (1991).
79. Id. at 1351, 1353, 1355-56.
80. Id. at 1351 (citing AREEDA & HOVENKAMP, supra note 10, %203.3b, at 34 & n.1 (Supp.
1989); Elhauge, supra note 25, at 704-05).
81. Id. at 1354.
83. Allied Tube, 486 U.S. at 502-03; Eastern R.R. Presidents Conference v. Noerr Motor
Freight, 365 U.S. 127, 142, 144 (1961).
motive attributed by Justice Scalia to the defendant in Omni. Petitioners
seeking governmental action to stifle their competitors are (like the
peti'tioners in Noerr and Allied Tube) likely to take pleasure in any expense,
delay, and interference their activity directly inflicts on competitors. The
Omni analysis does nothing to help guide courts in these mixed motive
cases. As Noerr and Allied Tube demonstrate, immunity or
non-immunity remain possible outcomes.
The second maneuver was to suggest that the exception for injuring
competitors through the process of petitioning applied only when the
defendant had "no expectation of achieving" the desired governmental
result.84 This, at least after Allied Tube, correctly describes the modern
sham exception. But the cases that have denied immunity where the
petitioning process directly injures competition-California Motor,
Walker Process,Allied Tube, and Trial Lawyers-do not fit within this
definition of a sham.
Justice Scalia mistakenly thought that at least California Motor
could be squeezed into the modern sham exception. His Omni opinion
noted that, despite language in CaliforniaMotor about improper
petitioning activities being shams, the actual case involved allegations that the
defendants litigated "'with or without probable cause, and regardless of
the merits of the cases.' "85 Justice Scalia concluded from this that the
defendants in CaliforniaMotor had made no genuine effort to influence
the courts, and that any language about an immunity exception for
genuine but improper efforts to influence the government could be ignored as
However, the factual premise for Scalia's analysis-that the
defendants in CaliforniaMotor had no expectation of obtaining favorable
governmental action-is false. As previously noted, the defendants had in
fact prevailed in twenty-one out of forty cases.87 Not only did their
litigations have a genuine chance of success, but they were batting over .5001
This explains why Justice Douglas felt obliged in his CaliforniaMotor
opinion to assess the antitrust immunity for various genuine but invalid
methods of petitioning.
CaliforniaMotor denied immunity not because the petitioning there
was not genuinely intended to secure governmental action, but because
the petitioning was, under traditional adjudicative norms, an abuse of
process: that is, litigation brought in order to impose costs and delays.
Whether such a motive should be sufficient to lose immunity even if the
defendant also has a motive of winning the adjudication, or whether the
84. Omni, III S.Ct. at 1354-55.
85. Id. at 1355 (quoting California Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508,
86. See id.
87. See supra text accompanying note 47.
"predominant" motive should govern, are complicated questions that I
will discuss below.88 But they are questions that Omni's facile
characterization does nothing to help answer.
One might be tempted to read Omni as overruling the holding in
CaliforniaMotor 9 to establish a new rule that genuine efforts to secure
governmental action are always immune,9 0 with a possible exception for
cases where the petitioner seeks to influence the government's actions as
a market participant.9 ' But such a sweeping expansion of antitrust
petitioning immunity would have to overrule more than CaliforniaMotor: it
would also have to overrule Walker Process, Allied Tube, and probably
Trial Lawyers.92 In all of those cases, the defendants received no
antitrust immunity even though they genuinely desired, and successfully
obtained, favorable governmental action.
Unfortunately, Justice Scalia's opinion simply ignored these
contrary holdings. Surely the Court did not intend to overrule such an
extensive line of cases without discussing the matter, especially since
Justice Scalia himself had joined the Court opinions in Allied Tube and
Trial Lawyers.93 But the Omni opinion leaves unexplained what exactly
the grounds for distinction were.
The RemainingDoctrinal Confusion
The new trilogy of cases has helped settle some issues, but antitrust
petitioning immunity remains a doctrine without any clear moorings. It
is more certain than ever that not all activities genuinely aimed at
influencing the government receive immunity for their direct effects. Walker
88. See infra text accompanying notes 256-76.
89. The CaliforniaMotor Court's explanation for its holding, that improper petitioning activity
is a sham, was overruled in Allied Tube. See supra text accompanying note 56. The holding itself,
however, remained intact.
90. The opinion contains some loose language to support such an interpretation. It makes
sweeping statements of immunity, eg., Omni, 111 S. Ct. at 1354 ("[F]ederal antitrust laws... do not
regulate the conduct of private individuals in seeking anticompetitive action from the government."),
limited only by the statement that there is a sham use-of-process exception, id. at 1354-55.
91. In rejecting the conspiracy exception to state action immunity, the Court explicitly left
open the possibility that the immunity might not apply when the government acted as a market
participant. Id. at 1351, 1353. The Court did not explicitly leave open this market participant
exception when it rejected the conspiracy exception to antitrust petitioning immunity. See id. at
1355-56. But since the explanation for the latter rejection simply incorporated the reasoning used
for the former, id. at 1355, presumably it also incorporated the limits of that reasoning and thus
included the possibility of an exception where a petitioner conspires with a government acting as a
92. The holding in TrialLawyers might be explained on the ground that the city government
there was acting as a market participant, see supra note 91, in purchasing legal services. This
distinction is only significant, however, if the government conspires with the petitioner. In Trial
Lawyers the city was coerced by the defendants, not in conspiracy with them.
93. Chief Justice Rehnquist and Justice Kennedy also joined all three Court opinions and
Justice Blackmun joined both Allied Tube and Omni, as well as those portions of TrialLawyers that
interpreted Noerr,Allied Tube, and ClaiborneHardware.
Process, California Motor, Allied Tube, and Trial Lawyers all denied
immunity to activity that not only was genuinely intended to influence
the government, but succeeded in doing so. But which such activities
receive immunity and which do not? After decades of decisions, no clear
rule has emerged.
The open-ended use of the sham and conspiracy exceptions to
decide this question has correctly been rejected. But while the
sourcecontext-nature test focuses attention on some relevant factors, it cannot
provide doctrinal certainty as long as the Court is unable to make any
definitive statement about which sources, contexts, and natures lead to
immunity and which do not. The means-consequence and
process-outcome tests also identify some relevant factors, but fail to articulate other
factors that are necessary to explain the Court's case law.
The opinions also leave mixed messages about various more
particular doctrinal questions. For example, should it matter whether the
government is acting as a market participant? Omni and Continental Ore
suggest the answer may be "Yes." But Pennington granted immunity
despite governmental participation in the market. And if market
participation is not the measure of "commerciality," what is?
Where fraudulent means are used to obtain administrative or
judicial action, should the petitioner be immune for the effects? Dicta in
Allied Tube suggest the petitioner is immune for the effects of the
governmental action, but not for any direct effects of such petitioning. Dicta in
Omni suggest the petitioner is immune for both effects. Dicta in
CaliforniaMotor suggest the petitioner is not immune for either. And
the only case to actually involve such a situation, Walker Process, held
the petitioner liable for both effects, but did not discuss the issue.
When is a restraint incidental to petitioning efforts? This issue has
never been explored by the Court. Perhaps the restraint must simply be
connected to the petitioning effort. Perhaps it must be necessary for the
petitioning. Or maybe the restraint's effects must be small compared to
the political effect. The opinions do not resolve the question.
Finally, what about mixed motive cases, where the process of
petitioning is used both in hopes of obtaining governmental action and in
order to impose expense and delay on competitors? Does any motive to
impose costs and delay suffice to lose immunity? Or must the motive be
significant or predominant? And how does one resolve either question?
This degree of uncertainty would be troubling for any doctrine. But
it is deeply disturbing for a doctrine that purports to define the scope of
the freedom to petition the government.
THE BASIC STRUCTURE OF ANTITRUST PROCESS
The doctrinal confusion that besets antitrust petitioning immunity
has a source. It stems not from a lack of judicial skill in resolving the
doctrinal gaps and ambiguities, but from the lack of any coherent
explanation of the policies defining the scope of antitrust petitioning
immunity. Without some basic policy framework to guide resolution of
doctrinal questions, it was entirely predictable that the doctrine would
The Court has so far failed to provide this policy framework. The
Noerr Court did, to be sure, articulate the affirmative reasons for
immunity: assuring governments the information necessary to govern, and
assuring citizens the ability to communicate their views to the
government.94 But the Court has never articulated a coherent policy
justification for the limitations on this immunity.
Academics have not done much better. They typically frame issues
of antitrust petitioning immunity as accommodating a tension between
First Amendment freedoms and federal competition policy.9" This
conceptual framework obscures more than it illuminates. In cases of true
conflict, fundamental constitutional principles require that any tension be
resolved in favor of the First Amendment. In cases beyond the scope of
constitutional protection, any tension must be resolved in favor of the
governing federal statute.96 In any event, explaining that issues must be
adjudicated by accommodating a "tension" does nothing to structure
doctrine, guide courts in adjudicating cases, or notify parties about how
to conform their activities to the law.
To provide a more useful policy framework, I take an objective
functional process approach. The aim is to chart, in line with functional
criteria, the types of decisionmaking processes producing restraints that
do and do not receive immunity. The approach is process-oriented in
94. See Eastern R.R. Presidents Conference v. Noerr Motor Freight, 365 U.S. 127, 137-39
95. See, eg., Calkins, supra note 9, at 328; Hurwitz, supra note 10, at 66, 119; Ronald E.
Kennedy, PoliticalBoycotts, the Sherman Act, and the FirstAmendment: An Accommodation of
Competing Interests, 55 S. CAL. L. REv. 983, 986, 1009, 1028-29 (1982); Kintner & Bauer, supra
note 11, at 552.
96. Where the applicability ofneither the Constitution nor a federal statute is clear, one canon
of statutory construction counsels construing the statute to avoid constitutional questions. See Cass
R. Sunstein, InterpretingStatutes in the RegulatoryState, 103 HARV. L. REV. 405, 469 (1989). But
this canon has been persuasively critiqued by others as an unjustified extension of the scope of
constitutional limitations. See HENRY J. FRIENDLY, BENCHMARKS 210-12 (1967); RICHARD A.
POSNER, THE FEDERAL COURTS 284-85 (1985). If the best, though not absolutely mandated,
reading of a statute raises constitutional questions but ultimately is constitutional, construing the
statute to avoid those questions will, without justification, deny the implementation of our best
understanding of legislative policy. More persuasive is the canon that requires construing statutes to
avoid only actual constitutional invalidity.
that (like, I will show, the case law) it focuses on the nature and incentive
structures of the decisionmaking processes producing the restraint and
not on the substance of those restraints. The approach is objective in the
sense that it focuses on objective indicia about the incentives of the
participants in the decisionmaking process. It does not, as the doctrine does
not, focus on the purity of the participants' subjective motivations. From
this process perspective, as we will see, much of the apparent tension
disappears, and the more narrow conflict between the competitive and
political processes can better be isolated and resolved.
Before beginning, a few words about nomenclature are appropriate.
I describe the doctrine being analyzed simply as "antitrust petitioning
immunity." I do not call it the Noerr doctrine or the Noerr-Pennington
doctrine, because those designations misleadingly focus attention on
cases that offer minimal guidance for the more complex issues now facing
the courts and that have, to a large extent, been transcended by the
subsequent Supreme Court case law. Moreover, I use the term "antitrust
immunity" quite generally to signify when the ordinary standards of
antitrust review, which impose liability unless the procompetitive effects
outweigh the anticompetitive effects,9 7 are inoperative. The standards
may be inoperative for reasons inside or outside of antitrust, and inside
or outside antitrust's rule of reason. 98
I thus intentionally do not specify whether the doctrine is an
"exemption." Nor do I specify whether it is an interpretation of the
antitrust statutes or mandated by the First Amendment. Much ink has been
spilt debating these questions,9 9 and the Supreme Court's ambiguous
statements on the issue have provided plenty of fodder for all sides in the
debate. It is more fruitful, however, to focus not on the ambiguous dicta
but on what practical import the answers have.
Here, the main implication drawn is that courts should narrow the
97. See, eg., FTC v. Indiana Fed'n of Dentists, 476 U.S. 447, 459 (1986); National Soc'y of
Professional Eng'rs v. United States, 435 U.S. 679, 688-96 (1978).
98. For example, the Supreme Court, while denying immunity under the state action doctrine
to municipal action unauthorized by the State, see Community Communications Co. v. City of
Boulder, 455 U.S. 40 (1982), has suggested that special liability rules might apply to municipal
action, see id. at 56 n.20. If such special liability rules were developed to preclude municipal liability
for any restraints that had no effect outside municipal boundaries, then, in the sense I use the term,
an "immunity" would apply to municipal restraints lacking extraterritorial effects.
99. For the argument that antitrust petitioning immunity is based on the First Amendment,
see, e.g., Fischel, supra note 14, at 81-84, 94-104; Lawrence D. Bradley, Note, Noerr-Pennington
Immunityfrom AntitrustLiability Under Clipper Exxpress v. Rocky Mountain Motor Tariff Bureau,
Inc.: Replacing the Sham Exception with a ConstitutionalAnalysis, 69 CORNELL L. REV. 1305
(1984). For the argument that it is simply a matter of statutory interpretation, see, e.g., Handler &
De Sevo, supra note 35, at 4-5; Robert A. Zauzmer, Note, The Misapplication of the Noerr.
Pennington Doctrine in Non-Antitrust Right to Petition Cases, 36 STAN. L. RaV. 1243, 1251-53
(1984). For courts calling it an exemption to the Sherman Act, see Handler & De Sevo, supra note
35, at 5 n.16 (collecting cases).
doctrine whether it is an exemption l°° or co-extensive with the First
Amendment.101 This is because exemptions are, by antitrust tradition,
construed narrowly,10 2 and because the First Amendment provides
limited protection against content-neutral regulations unless they unduly
burden speech without leaving open alternative avenues of expression."0 3
These implications suggest answers, on a descriptive level, to the debated
questions because there is plainly no operative tradition of construing
antitrust petitioning immunity narrowly and the immunity in fact does
extend beyond the limits of First Amendment protection) °4
These implications also suggest why the debated questions prove
unhelpful on a normative level. Whether, as a matter of policy, the
doctrine should be deemed an exemption depends on whether one believes it
should be narrowly construed, and whether it should be deemed solely a
First Amendment doctrine depends on whether one believes it should
extend beyond the limits of the First Amendment. Nothing is gained by
addressing the debated questions in their abstract sense rather than
proceeding directly to the substantive issues, and much may be lost if
doctrinal issues are mishandled because attention from the substantive issues is
diverted. It is to those substantive issues about decisionmaking processes
that I now turn.
The Core Elements: Defining Privateand Public Decisionmaking
A framework for analyzing the complex issues of antitrust
petitioning immunity from a process perspective should begin with certain core
elements: namely, decisionmaking processes that clearly are or are not
within the scope of antitrust. I begin with the sort of decisionmaking
process that produces the restraints ordinarily adjudicated in antitrust
cases: restraints set by private businesses without any governmental
involvement in their decision. Two businesses, for example, agree to
Of course, using litigation to impose costs on competitors cannot, in
general, have any anticompetitive effect unless the defendants exercise or
orchestrate the market power to raise prices once their rivals' costs (or
behavior or existence) have been changed.25 4 Because the warrant for
imposing antitrust liability-rather than ordinary tort liability for abuse
of process-is that strategic litigation abuse might affect competition,
this suggests that market power should be a necessary element to finding
antitrust liability for abuse of process litigation. Moreover, market
power is a prerequisite to liability under the Sherman Act except for
certain per se violations,2 5 5 and it would be inappropriate to treat abuse of
process litigation as a per se violation because such litigation is often
difficult to distinguish from meritorious litigation.
This brings us to the fourth issue, which is the one that has most
perplexed courts and commentators, and which is currently pending
before the Supreme Court: how can a court determine when a litigant
has engaged in abuse of process litigation?2" 6 A typical statement is that
"[t]he line is crossed when [the defendant's] purpose is not to win a
favorable judgment against a competitor but to harass him, and deter
others, by the process itself-regardless of outcome-of litigating."2 7
But it is hard to find the litigant who does not have both aims. The most
strategic of litigants genuinely hope they win, even if the odds may not
look good, and the most nonstrategic of litigants usually dislike their
opponents enough to take some pleasure in inflicting litigation costs on
If a genuine hope of winning sufficed to receive immunity, then
abuses of process would effectively go undeterred, and predatory
litigation would flourish. If, on the other hand, a purpose of harassing
opponents sufficed to lose immunity, then firms would fear to bring even
meritorious litigation against their competitors. The mere existence of
either motive should thus not suffice to establish immunity or
non-immunity. Some weighing of the motives must be made.
One method is to determine the defendant's subjective intent, 258
which where motives are mixed means determining which motive
subjectively dominated the defendant's mind. This approach is in some tension
with the general objective process approach, but is perhaps justified
because the prevailing regulatory standards-abuse of process
normsincorporate a primary intent test.2 59 Nonetheless, an objective test for
determining intent is preferable for the reasons articulated above." °
Subjective intents are too easy to hide-and allege. Courts required to
determine subjective intents will thus be forced to speculate about
something that is, in truth, largely unknowable. Worse, because the inquiry is
so unstructured, determinations of subjective motive will likely be
influenced by the hidden biases of judges and juries against (or for) certain
types of litigation or litigants.
Three principal efforts have been made to give objective content to
the process/outcome intent test. One asks whether the chances of
winning were "reasonable," 2'6 which can be much the same as asking
whether there was "probable cause" to bring the suit.26 2 This test entails
examining the extent of legal and factual support for the party's
position.2 63 But penalizing litigation whenever the chances of success are low
would bar "creative" legal arguments from legal discourse.2" And it is
hard to see what plausible test based on the chances of winning could
possibly explain excluding a litigant with a 52.5% success rate, as
CaliforniaMotor did.2 6 If, in response to these problems, one interprets
the reasonable expectation test as referring to something other than the
likelihood of success, then the test offers no guidance at all because which
expectations are "reasonable" becomes a completely conclusory
A second test asks whether the motive of securing judicial relief was
a "significant" factor behind the decision to sue.26 7 Unfortunately, this
test also leaves the judicial inquiry unstructured. Not only is there no
definition of what "significant" means, but the criteria that would go into
deciding significance are left uncertain. The test does suggest that courts
should look not only at the chances of success but also at the stakes for
the litigating party, since both no doubt affect decisions to litigate.2 6
But the test fails to explain how courts should weigh these factors.
Judge Posner has offered a more structured approach. In Grip-Pak
he stated that there should be no immunity when the value of a favorable
judgment, discounted by the uncertainty of prevailing, is less than the
cost of suit. 269 The main objection to this test is that it discourages the
filing of legitimate or novel claims,2 70 especially when one takes into
account the possibility of judicial error. But this objection is not
dispositive because any doctrine can offer at best imperfect regulation. Efforts
to deter undesirable conduct inevitably deter some desirable conduct,
and the best we can hope for is a system that achieves the optimal
tradeoff.27 1 Here the unavoidable tradeoff is between deterring predatory
litigation and deterring legitimate suits; we cannot deter the former without
deterring some of the latter. 272
Nonetheless, a number of factors suggest that Posner's test overly
constricts immunity. His test effectively denies immunity whenever the
prospect of victory is not a sufficient motive for litigation, or, to put the
matter another way, whenever the direct injury to competitors is
necessary to motivate litigation. But if both this direct injury and the prospect
of favorable judgment are necessary motives for litigation (and thus
neither is a sufficient motive), one cannot say that one motive is greater
than the other.
Posner's objective test accordingly seems somewhat biased toward
finding an abusive intent. If anything, the opposite bias seems advisable.
Legitimate suits are already somewhat deterred by their costs, and those
same costs offer some self-deterrence to strategic litigation. This suggests
a greater need to encourage legitimate suits than to deter strategic suits.
bans on predatory pricing must balance the benefit of deterring predatory pricing against the cost of
deterring desirable price-cutting). The same tradeoff is present for non-antitrust doctrines that deal
with the problem of frivolous suits and strategic litigation. See Gilson, supra note 162, at 877-82
(arguing with respect to malicious prosecution and professional rules of conduct that any definition
of strategic litigation must trade off over- and underinclusion); Avery Katz, The Effect of Frivolous
Lawsuits on the Settlement of Litigation, 10 INT'L REV. L. & ECON. 3, 26 (1990) (concluding that
the English rule of assessing legal expenses against the loser may help deter frivolous suits, but only
at the cost of deterring meritorious suits). The discussion in the text thus also applies to those
Further, an antitrust suit brought to challenge strategic litigation carries
with it the threat of treble damages. These treble damages, coupled with
the direct costs inflicted on an opponent by a suit alleging strategic
litigation, mean that the threat of a "sham-sham" suit (i.e., a suit falsely
alleging the other side engaged in strategic litigation) will likely carry greater
weight than the threat of a "sham" (i.e., strategic) suit. 273
A better test would deny antitrust immunity only if the direct injury
was a necessary and sufficient objective motivation for the allegedly
strategic litigation. Under this two-part test, the antitrust plaintiff alleging
strategic litigation would (in addition to defendant market power) have
to show: (1) that the antitrust defendant would not have brought the
original suit but for the direct injury imposed on his competitor, and (2)
that the defendant would have brought suit even without any prospect of
winning in order to inflict the direct costs or delays on his competitor.
This test fits better with the significant motive test,27 4 and provides some
objective content to the reasonable expectation test. It also lessens the
risk that antitrust suits will deter novel and legitimate litigation because
it denies immunity only if the direct injury alone would cause the
antitrust defendant to sue (and the expected value of winning would not),
which is certainly not true for most novel or imaginative claims. The
risk is further lessened under my test because litigants would suffer no
antitrust liability unless they have been proven to have a market power to
raise prices that will be maintained, created, or strengthened by the
infliction of litigation costs or delays on their competitors.2 75 While there will
no doubt be uncertainties in the test's application, it structures the
judicial inquiry far more than the conclusory reasonable expectation or
significant motive tests ever could.2 76
273. See Klein, supra note 245, at 249. Treble damages pose a threat because of the inevitable
possibility of false positives: that is, unwarranted findings that the original suit was strategic or
274. The courts using the significant motive test have relied not just on evidence that the suit
was not reasonably founded but also on evidence that the defendant would have sued to impose
direct costs even without any prospect of winning. See In re Burlington N., Inc., 822 F.2d 518, 528
(5th Cir. 1987), cert. denied, 484 U.S. 1007 (1988).
275. See supra text accompanying note 254-55.
276. Proving strategic litigation will be easier if the defendant has engaged in repetitive
litigation, but one-shot lawsuits can also constitute strategic litigation outside the scope of
petitioning immunity. See AREEDA & HOVENKAMP, supra note 10, 1 203.1e, at 31-32 (collecting
cases); Handler & De Sevo, supra note 35, at 28-30 (same); Hurwitz, supra note 10, at 101 & n.160
(same); Kintner & Bauer, supra note 11, at 574 n.l10 (same). Nor, despite some language in
California Motor Transportation Co. v. Trucking Unlimited, 404 U.S. 508, 515 (1972), does it seem
necessary to show that the defendant's actions barred the antitrust plaintiff from access to the
adjudicatory process. See AREEDA & HOVENKAMP, supra note 10, 1 203.1b, at 22-23 & n.31
(collecting cases); Hurwitz, supra note 10, at 101-02 & n.165 (same). Both these legal conclusions
comport with the analysis offered here. Competitors (and, through them, competition) can be hurt
by enduring the costs of strategic litigation even though only one suit is brought and even if the costs
are not so high as to totally deprive the party of access to the courts.
Validity in the Private Process
Allied Tube presented a somewhat more perplexing case. The
defendants there chose to influence the government and the market
indirectly, by influencing a private standard-setting association to adopt an
electrical code that excluded plastic conduit. To some extent, this
injured the plaintiffs because the code constituted an implicit agreement
by association members to boycott the plaintiff's product. To that
extent, the defendants' conduct involved market behavior which, as
discussed above, is outside the scope of antitrust immunity. 277
Had the plaintiff's entire injury resulted solely from this collective
market behavior, the Court could have stopped with that observation.
But much of the plaintiff's injury was reputational. The code's
conclusion that plastic conduit was unsafe had a strong influence on
non-association members: if a product fell outside the code, private certification
laboratories would not certify it, underwriters would not insure it, and
many inspectors, contractors, and distributors would not use it.2 78 To
determine whether the defendant was immune from damages for these
reputational injuries required determining whether the defendant's
conduct was valid within the ordinary standards applicable to the context.
Here the context was a standard-setting association that was "private" in
the sense that the Court uses the term because it comprised market
participants and was thus financially interested.27 9 One might represent this
decisionmaking process by Diagram K.
277. See supra note 205 and accompanying text.
278. See Allied Tube & Conduit Corp. v. Indian Head, Inc., 486 U.S. 492, 495-96 (1988).
279. In denying immunity, the Court emphasized that the defendants exercised decisionmaking
authority over an association that comprised market participants with financial interests at stake.
Id. at 501-02, 506-07. Although Professors Areeda and Hovenkamp suggest that immunity might
still apply to "'normal' voting" by financially interested association members, AREEDA &
HOVENKAMP, supra note 10, 206.2, at 86-87, this suggestion is unfounded. The Court explicitly
rejected the notion that complying with association rules should provide immunity. Allied Tube,
486 U.S. at 509. Moreover, the Court held that where "an economically interested party exercises
decisionmaking authority in formulating a product standard for a private association that comprises
market participants, that party enjoys no Noerr immunity from any antitrust liability flowing from
the effect the standard has of its own force in the marketplace." Id. at 509-10. Anyone voting
clearly exercises "decisionmaking authority," and voting by financially interested actors-whether
"normal" or not (assuming that could be defined)--creates the sort of decisionmaking process
calling for antitrust review.
The question was what provides the ordinary process standards in
this context. In part such standards are provided by the rules of the
standard-setting association, under which the defendants' conduct in
packing the meeting (while unsavory) was valid.2 80 But the perplexing
facet of the case was that, irrespective of association rules, the legal
standards governing the private standard-setting process are largely those
provided by antitrust law itself.2 8 1 Accordingly, when the Court
incorporated the process' prevailing regulatory standards to decide whether
the conduct was invalid in a way that abrogated antitrust immunity, it
had to incorporate the standards of antitrust review itself. In short,
"[t]he issue of immunity in this case thus collapses into the issue of
antitrust liability. 282
This conclusion should not be misinterpreted as meaning, as the
lower court held in Allied Tube,28 3 that indirect efforts to petition the
government by petitioning a private organization should not receive
antitrust immunity. Imagine, for example, that DuPont petitions the
Democratic Party or the Sierra Club to adopt organizational platforms calling
for governmental restrictions on fluorocarbons. An antitrust suit is
brought alleging that DuPont is financially interested because, unlike its
competitors, it has alternative means of producing spray cans that do not
use fluorocarbons. Under the Court's doctrine, antitrust immunity
would still apply as long as DuPont's efforts conformed with the
ordinary political standards governing efforts to influence political parties
and organizations.28 4 . Under the lower court's direct/indirect distinction,
immunity would not have applied because no public official was directly
petitioned. Such a direct/indirect distinction would have seriously
restricted petitioning rights because the real movement of political ideas
generally occurs not in legislative hearings but in the countless private
fora that create organizational agendas and mold public opinion. A
denial of immunity for indirect petitioning would thus have been chilling
indeed to First Amendment freedoms.
We are now in a position to unpack what has been lumped together
as a "commercial" exception to antitrust petitioning immunity.
Commerciality, the discussion so far demonstrates, may be relevant in no less
than three distinct senses. First, the governmental action may be
commercial in the sense that the government or its officials have a financial
interest in the government's restraint of trade. This would deprive the
petitioner of immunity for any direct restraints and, where it shares
deci280. See Allied Tube, 486 U.S. at 509.
281. See id. at 500-01, 506-07.
282. Id. at 509.
283. Indian Head, Inc. v. Allied Tube & Conduit Corp., 817 F.2d 938, 945-46 (2d Cir. 1987),
aff'd on othergrounds, 486 U.S. 492 (1988).
284. Accordingly, the Allied Tube Court rejected the direct/indirect distinction, noting that the
petitioning in Noerr itself was indirect. Allied Tube, 486 U.S. at 503.
sional responsibility, for the government's restraint. Second, the
defendant's conduct may involve financially interested market behavior. The
petitioner would still be immune for the government's restraint unless the
government was coerced, but would not have immunity for any direct
effects of the market behavior. Finally, the commerciality of the
governmental activity or the petitioning may determine the appropriate
contextual standard to judge the validity of the petitioning. Where this
commercial context means the petitioning is invalid, its direct effects
enjoy no immunity, but the governmental action normally does.
4. PoliticalBoycotts that Do Not Coerce the Government
We come next to the topic of non-coercive political boycotts; that is,
boycotts designed to raise consciousness and influence public opinion
which do not c6erce the government. For example, suppose gas stations
agree to close during certain periods to protest governmental price
regulations. Should this boycott be immune? So far, courts have split on the
The issue is distinguishable from that in TrialLawyers because here
the boycotters are not boycotting or coercing the government directly.
The restraint on the public has coercive aspects, but the input into the
government may not be coercive. The issue is thus closer to that in
Allied Tube: market behavior that produces both a financially interested
restraint and persuasive input into the political process. Nonetheless,
there may be some indirect coercion of the government if the boycott
coerces voters to in turn exert pressure on the political process.
In any event, whether under Allied Tube or TrialLawyers, the
analysis above suggests that if the boycotters have a financial interest in the
boycott, no immunity should apply. This is supported by dicta in Allied
Tube, which listed a parade of horribles intended to show the
unacceptable consequences of the absolutist position that immunity applies to all
activity genuinely intended to influence the government. Among the
unacceptable horribles, the Court included:
Horizontal conspiracies or boycotts designed to exact higher prices or
other economic advantages from the government would be immunized
on the ground that they are genuinely intended to influence the
government to agree to the conspirators' terms. Firms could claim immunity
for boycotts or horizontal output restrictions on the ground that they are
intended to dramatize the plight of their industry and spur legislative
The two sentences signal the Court's understanding of the distinction
285. Compare Osborn v. Pennsylvania-Del. Serv. Station Dealers Ass'n, 499 F. Supp. 553, 558
(D. Del. 1980) (not immune) with Crown Cent. Petroleum Corp. v. Waldman, 486 F. Supp. 759, 769
(M.D. Pa.) (immune), rev'd on othergrounds, 634 F.2d 127 (3d Cir. 1980).
286. Allied Tube, 486 U.S. at 503 (citation omitted).
between two different sorts of political boycotts, those that coerce the
government and those that do not. They also indicate the Court's
sentiment that (at least where financially interested) neither merits immunity.
TrialLawyers echoed both sentiments, 287 as well as providing the
holding that cemented the first.
Where the boycotters have no financial interest in the
anticompetitive consequences of the boycott-that is, they do not benefit financially
either from lessening competition in the boycotted market or from
inducing the boycotted parties to lessen competition in other markets-the
issue is different. To some extent, such financially disinterested boycotts
are immunized under Claiborne Hardware, where the boycott to end
racial discrimination was aimed not only at government officials but also
at private merchants.288 And, as I argue above, because such
disinterested action cannot usefully be channeled into a competitive process,
antitrust review may be unhelpful from an objective process
This distinction between financially interested and disinterested
boycotts provides a sounder basis for the decision in Missouri v. National
Organizationfor Women (NOW) than the Eighth Circuit was able to
provide.290 That case concerned a boycott, organized by NOW, of
convention facilities located in states that had not ratified the Equal Rights
Amendment. The Eighth Circuit held that the boycott was immune
because (1) the ultimate goal was political, not economic, legislation and
(2) the boycotters were motivated by political objectives, not profit. 29 1
Unfortunately, both these tests are ambiguous and raise the specter
of sub rosa judicial bias. How can we tell that the Equal Rights
Amendment is political and not economic? Surely it would re-order
economic relations in employment. And what about other boycotts, like one
designed to encourage bans on allegedly unsafe products? Such bans
may have noneconomic objectives, but they restrict competition. The
inevitable risk is that judges will tend to conclude that the sort of
legislation they favor is political and the sort they disfavor is merely economic.
Perhaps judges can discipline themselves to avoid this tendency, but
without any intelligible criteria for sorting political from economic
legislation, they have little else to rely on besides their gut intuitions. In any
event, the judicial ability to resist the temptation to impose judicial views
is not limitless. Like other scarce items, it should be economized.
Similar problems beset a test focusing on whether the boycotters were
subjec287. FTC v. Superior Court Trial Lawyers Ass'n, 493 U.S. 411, 425 (1990) (quoting Allied
Tube, 486 U.S. at 503).
288. See supra text accompanying notes 165-67.
289. See supra text accompanying note 164.
290. 620 F.2d 1301 (8th Cir.), cert. denied, 449 U.S. 842 (1980).
291. Id. at 1311-12.
tively motivated by financial gain or by political objectives, and for that
reason subjective motives are not used under the functional process
approach-or the Court's case law-in determining whether antitrust
immunity applies.29 2
What should have been considered decisive was the fact that,
objectively speaking, the boycotters in NOW had no financial interest in any
anticompetitive consequences of the boycott. They did not compete with
convention facilities and had nothing financial to gain from lessening
competition in the convention market.29 3 To be sure, some of the
boycotters might have gained financially if the Equal Rights Amendment
had been enacted because they would have gotten better jobs or pay.2 94
But one could have said the same about the boycotters in Claiborne
Hardware. In both cases, however, this financial interest was never
actually established and would in any event have been attenuated and
inapplicable to many of the boycotters, especially those who were male in
NOW and white in Claiborne.
More importantly, the question here is whether the boycotters had a
financial interest in the anticompetitive consequences of the restraint
imposed by their actions, not whether they had a financial interest in
whatever governmental action might have ultimately resulted. They are
immune for any results of the government action, absent evidence that
the government was coerced by a boycott that had market power.295 But
they lose their immunity for the direct results of their boycott, with or
without a showing of market power, if they would have benefitted
financially from a lessening of competition in the boycotted market or from
inducing the boycotted parties to lessen competition. In NOW, the
boycotters had no financial stake at all in the boycott's nongovernmental
consequences, and thus rightly received immunity.
In ClaiborneHardware, the boycotters had no financial interest in
lessening competition among white merchants. And although some
boycotters may have had a financial interest in directly inducing white
merchants to end job discrimination, the end of such discrimination does
292. See supra text accompanying notes 161-63. See generally AREEDA & HOVENKAMP, supra
note 10, 1 113.1, at 7 (noting difficulty of parsing mixed motives). Also raising problems of
ambiguity and sub rosa judicial bias would be a doctrine that immunized boycotts with an
"expressive component." Such a doctrine was appropriately rejected in FTC v. Superior Court Trial
Lawyers Ass'n, 493 U.S. 411, 428-32 (1990).
293. NOW, 620 F.2d at 1303 (summarizing lower court's factual findings). If, instead, the
boycotters included hotels from states that had ratified the Equal Rights Amendment, who would
have benefited financially from the shift in business from non-ratifying states, those hotels would not
have merited antitrust immunity, no matter how pure they claimed their subjective motives were.
Cf AREEDA & HOVENKAMP, supra note 10, % 113.1, at 6 (arguing that immunity should
presumptively, but not conclusively, be denied to such hotels).
294. See AREEDA & HOVENKAMP, supra note 10, 1113.1, at 6; Minda, supra note 24, at 984
295. See supra text accompanying note 179.
not lessen competition but increases it by making jobs available to more
applicants. If instead the boycott aimed to induce white merchants to
hire a minimum quota of blacks, then any financial interest for
boycotters who were black job seekers would flow from direct anticompetitive
consequences of the boycott (because competition for certain slots would
be decreased) and no immunity would have applied.2 96
LIABILITY FOR GOVERNMENTAL ACTION?
The final issue is whether there are any circumstances where
petitioners should be liable for.restraints imposed by governmental decision.
I have already adverted to one such issue: petitioners should be liable for
governmental restraints that resulted from petitioner coercion. 297 But
where the petitioner urges, rather than coerces, governmental action,
then one must contend with the following language from Allied Tube
(quoting Noerr): "'[W]here a restraint upon trade or monopolization is
the result of valid governmental action, as opposed to private action,'
those urging the governmental action enjoy absolute immunity from
antitrust liability for the anticompetitive restraint."2'9 8 This raises the
question of what, within the functional process framework, constitutes
"valid," instead of invalid, governmental action.
One possible meaning of invalid governmental action, which might
seem to correspond to the meaning of invalid petitioning described
above, would focus on whether the governmental action was legal within
the procedural, administrative, or constitutional standards that apply to
that government action. And indeed, in the past, some commentators
have argued that there should be no immunity when the petitioner seeks
government action outside the scope of the government's authority.2 99
Immunity would, for example, be denied under this position if the
petitioner obtains legislative action that violates the state constitution or
agency action that exceeds the agency's statutory authority.
This position should, however, be rejected. From a functional
process perspective, all that matters is whether the restraint was politically
accountable and financially neutral. If it is, it should be immune from
antitrust review because the rationale for antitrust scrutiny does not
apply. The other legal remedies for exceeding the government's
authority should be adequate. If the so-called governmental restraint is instead
financially interested, then it should be denied antitrust immunity even if
the action is otherwise legally authorized by the Constitution or by state
or local law."c°
Professors Areeda and Hovenkamp, and several courts, have
reached a similar conclusion, arguing that immunity should apply to
unauthorized governmental action, even if the defendant "knew" the
action was unconstitutional or unauthorized.3 0 1 But their reasons are
pragmatic. They argue that the motivational inquiry will be difficult, will
rarely turn up such knowledge where governmental action was obtained,
and will deter petitioning.3 "2 The rationale here, in contrast, is
conceptual. Without evidence that a financially interested process produced the
restraint, the rationale for reviewing it under antitrust standards simply
does not apply. This is not to deny that there are important practical
arguments for antitrust courts' refusal to deny petitioning immunity even
to bad faith petitions for unauthorized government action, just as there
are for antitrust courts' refusal to deny state action immunity even when
the government has exceeded its authority in bad faith.30 3 But these
sorts of ad hoe pragmatic arguments do not form the basis of a consistent
doctrine. A far clearer explanation is that financial interest, not
governmental authority, is the real test.
More pertinent to the "validity" of the governmental action is
whether it would receive immunity under antitrust's state action
doetrine."° As I have argued in another article, state action immunity does
and should apply whenever the governmental actor is politically
accountable and financially disinterested, but does not and should not apply
when the governmental actor is financially interested.30 5 It follows that if
the state action doctrine immunizes the restraint causing the injury, then
the functional process standards described above have been met, and the
efforts to procure that restraint should be immune from any antitrust
300. If the governmental action is authorized by federal statute, then we obviously have a
question of whether the statute implicitly repeals the application of federal antitrust law. The
tradition is to construe such implicit repeals narrowly. See Union Labor Life Ins. Co. v. Pireno, 458
U.S. 119, 126 (1982).
301. AREEDA & HOVENKAMP, supra note 10, 203.2, at 34-37; see also id. 203.2, at 36-37
nn.5 & 7 (collecting supporting cases).
302. See id. 203.2, at 35-37; see also 1 AREEDA & TURNER, supra note 105, 202b, at 39.
303. See Elhauge, supra note 25, at 692 (noting courts hold that the "clear authorization"
requirement for state action immunity is met even when the state actors have exceeded or abused
their authority in bad faith). This position has been confirmed in City ofColumbia v. Omni Outdoor
Advertising, 111 S. Ct. 1344, 1349-50 (1991).
304. For cases holding or suggesting that petitioning immunity should hinge on the existence of
state action immunity, see AREEDA & HOVENKAMP, supra note 10, 203.2a, at 35 n.1. For cases
holding or suggesting the opposite, see Meyer, supra note 198, at 843 n.54.
305. See Elhauge, supra note 25, at 682-729.
liability flowing from it. This is the best way of interpreting what the
Court means when it states the governmental action must be "valid."
But this does not mean, as is sometimes simplistically said, that
petitioning immunity is just the flip side of state action immunity.3 06 For
sometimes, as we have seen above, petitioning immunity is denied (to
restraints directly produced by the petitioning) even though the
petitioning also produced governmental action that does and should receive state
action immunity.30 7 Other times, the petitioner may simply be urging a
financially interested government to impose a restraint. For example,
suppose resident producers of a product mainly sold to out-of-towners
encourage their city to set a minimum price at which the product can be
sold. In that case there should be no state action immunity because the
government is financially interested,30 8 but the petitioners should still be
immune because the governmental decision is the one that sets the terms
of the restraint.30 9 Where, on the other hand, the petitioner determines
the terms of the restraint jointly with a financially interested government
(say, for example, by fixing the same sale price for goods sold by both the
petitioner and the government) then petitioning immunity does not
apply. 3 10
Some commentators have argued that the key question in evaluating
petitioning immunity is whether governmental action is the
"supervening" or "proximate" cause of the anticompetitive injury.3 11 Although
such doctrinal formulations can provide a handy means of reaching the
correct conclusions, I do not rely on causation because it is a formal
conclusion driven by functional considerations.3 12 One could often reach
opposing conclusions about who "caused" the restraint and whether the
cause was "supervening." The real key is what functional considerations
underlie the causal inquiry.
Suppose, for example, the question is whether immunity should
306. See, e.g., Omni, 111 S. Ct. at 1355; Donald I. Baker, Exchange of Information for
Presentation to Government Agencies: The Interplay of the Container and Noerr Doctrines, 44
ANrrRusT L.J. 354, 356 (1975).
307. See supra Part IV.
308. See Elhauge, supra note 25, at 729-38. For reasons peculiar to financially interested
municipal restraints, state action immunity still applies if the restraint was authorized by the state.
See id. at 736-38. But even with such state authority, dormant Commerce Clause review should
strike down the price floor if it mainly affects persons residing out-of-state. See id. at 732-35; Saul
Levmore, InterstateExploitation and JudicialIntervention, 69 VA. L. REv. 563, 575-626 (1983).
309. Accord AREEDA & HOVENKAMP, supra note 10, 1 212.8, at 198.
310. See supra text accompanying notes 124-39 (discussing ContinentalOre); accord Sullivan,
supra note 10, at 365-66. Under my analysis, though perhaps not Professor Sullivan's, immunity
would be denied only if the price-fixing exploited market power against nonresidents of the
government since the government would have no financial interest in exploiting its own residents.
311. See AREEDA & HOVENKAMP, supra note 10, %201, at 14-15; Hurwitz, supra note 10, at
312. See Guido Calabresi, ConcerningCause and the Law of Torts: An Essay for HarryKalven,
Jr., 43 U. Cm. L. REV. 69 (1975).
apply to a monopolistic practice for which the monopolist sought and
received substantive approval from a disinterested state regulator.
Having received approval, the monopolist directly imposes the practice itself,
so it seems debatable whether the state regulator was the "cause" of the
practice, supervening or otherwise, particularly if it is not clear whether
the regulator's approval was required before the practice could be
implemented.3 13 However, the real question in such cases is whether the
decisionmaking process producing the restraint is sufficiently reliable to merit
antitrust immunity, or whether instead its reliability depends on being
subjected, via antitrust review, to the competitive process. Here, the
monopolistic practice should be immunized because a disinterested
accountable actor has made a substantive decision in its favor before the
practice was imposed on the market. "Causation" is besides the point.
Likewise, causation explains neither the existence of immunity in
some cases where a restraint flows directly from the petitioning nor the
factors that determine whether such immunity for direct restraints
applies. For that, we must look to the functional process framework
articulated above in Part IV.
Suppose an unscrupulous liquor store bribes a state commissioner to
deny a liquor license to a potential competitor. The bribe has produced a
governmental restraint on competition. Are the briber and commissioner
immune from antitrust liability for this restraint because, however
invalid the bribe, the denial of the liquor license resulted from valid
Under the objective process approach of this Article, the clear
answer is "No." The decisionmaking process producing the restraint
was financially interested, and thus not likely to advance the public
interest unless subjected (via antitrust review) to the competitive process. The
decision by the bribed official should not get state action immunity, and
the effort to bribe the official should not receive petitioning immunity.
This conclusion conforms to lower court decisions.3 14
313. See generally AREEDA & HOVENKAMP, supra note 10, %206.1, at 80-81 (discussing
314. See Instructional Sys. Dev. Corp. v. Aetna Casualty & Surety Co., 817 F.2d 639, 650 (
); Associated Radio Serv. Co. v. Page Airways, 624 F.2d 1342, 1358 (5th Cir. 1980), cerL
denied, 450 U.S. 1030 (1981); Rangen, Inc. v. Sterling Nelson & Sons, 351 F.2d 851, 856-57 (9th Cir.
1965), cert. denied, 383 U.S. 936 (1966); Cipollone v. Liggett Group, Inc., 668 F. Supp. 408, 4
). But see Cow Palace, Ltd. v. Associated Milk Producers, Inc., 390 F. Supp. 696, 702
(D. Colo. 1975). Campaign contributions, on the other hand, do not make a government official
sufficiently self-interested to lose antitrust immunity. See Boone v. Redevelopment Agency, 841
F.2d 886, 895 (9th Cir.) (Sherman Act inapplicable to campaign contributions), cert. denied, 488
U.S. 965 (1988); Metro Cable Co. v. CATV of Rockford, 516 F.2d 220, 231 (7th Cir. 1975) (same);
Elhauge, supra note 25, at 704 n.176 (same). There are two reasons for this conclusion. First, such
contributions do not so much redound to the personal financial interest of the official as help that
The issue has not yet been resolved by the Supreme Court because it
has never adjudicated an antitrust state action or petitioning immunity
case involving the bribery of a public official.31 5 The Court has, however,
issued conflicting dicta on the topic. In California Motor and Allied
Tube, the Court recognized that a bribery exception to petitioning
immunity existed. 16 The Omni opinion, on the other hand, contained dicta to
the contrary. In the course of (correctly) rejecting the general
proposition that immunity should be denied to governmental action when a
petitioner has violated some other state or federal law, a" 7 the Court rejected
the specific proposition that immunity should be denied when a
government official is bribed.31 8 The statements were dicta because there was
official stay in office. Since most legislators could earn far more outside office, presumably their
desire to stay in office reflects their desire to exercise their political judgment on other issues, not a
desire for financial gain. Second, campaign contributions are a thoroughly legal (indeed
constitutionally protected, see Buckley v. Valeo, 424 U.S. 1, 58-59 (1976)) method of influencing the
governmental process. See Boone, 841 F.2d at 895. Thus, if the official is regarded as financially
interested, the situation presents a true conflict between the competitive process and political process
which, where no market behavior is involved, the case law resolves on behalf of the political process
by granting immunity. See supra text accompanying notes 205-06.
Although no petitioning immunity applies, some lower courts have held that bribing merely to
procure a government contract does not amount to a Sherman Act restraint of trade. See generally
Franklin A. Gevurtz, CommercialBribery and the Sherman Act, 42 U. MIAMI L. REV. 365, 373-95
(1987) (collecting and analyzing case law). But this view is not universal, and, would not, in any
event, immunize the briber from liability under other antitrust statutes like the Robinson-Patman
Act or the Federal Trade Commission Act. See id. at 366 n.3, 377. Moreover, in the cases finding
no restraint of trade, arguably competition was not harmed because the bribe merely influenced
which party got a government contract that would, no matter which party was chosen, have
excluded competitors. These cases would thus seem inapplicable when instead the bribed
government official does impose a clear restraint on competition, such as restrictions on price,
output, or entry.
315. The Court did decide an antitrust case involving the bribery of a foreign official, ruling that
the act-of-state doctrine provided no immunity because the suit was against those who bribed the
official and thus did not require a court to declare invalid the official act of a foreign sovereign. See
Kirkpatrick Co. v. Environmental Tectonics Corp., 493 U.S. 400, 405-06 (1990).
316. See California Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 513 (1972); Allied
Tube & Conduit Corp. v. Indian Head, Inc., 486 U.S. 492, 502 n.7, 504 (1988). This recognition of a
bribery exception might seem to contradict the language in Allied Tube indicating that those urging
valid public restraints enjoy absolute immunity for those restraints. Id. at 499. The reconciliation is
that a bribed governmental official is "private" within the meaning of antitrust immunity because he
is financially interested and should thus enjoy no state action immunity. Consistent with this
interpretation, the Allied Tube case cited the bribery exception along with Continental Ore to
support the proposition that "[t]he dividing line between restraints resulting from governmental
action and those resulting from private action may not always be obvious." See id. at 501-02 & n.7;
see also id. at 501 (holding that the association was not public because the decisionmaking body
comprised "persons with economic incentives to restrain trade"). Another possible doctrinal
reconciliation is that bribery does not constitute merely "urging" governmental action.
317. This of course does not mean that antitrust immunity would extend to the direct effects of
such illegal petitioning (as opposed to the effects of governmental action), but the Omni case did not
concern such direct effects. See supra text accompanying notes 81-82.
318. See City of Columbia v. Omni Outdoor Advertising, I11 S.Ct. 1344, 1353 (1991) (stating
that state action immunity would still apply); see also id. at 1355-56 (incorporating this proposition
by reference for petitioning immunity).
no evidence the defendant had engaged in bribery,3 19 but the Court's
reasoning is nonetheless worth exploring because, to the extent it indicates
the present Court's opinion on the subject, it may represent a departure
from the functional process approach.
The Court listed three reasons for its conclusion. First was that
proving bribery or other independent legal violations bears no relation to
the purposes of the Sherman Act.320 But one cannot indiscriminately
lump bribery together with other legal violations. While other legal
violations may in fact bear no relation to the purposes of the Sherman
Act,32 1 bribery does. This is not because bribery violates other state and
federal laws-that is besides the point. The distinctive feature of bribery
is that it makes the decisionmaking process a financially interested one,
and thus one that should be policed by antitrust to ensure that the
competitive process is not needlessly undermined.
Second, the Court argued that bribery does not necessarily mean
that the resulting governmental action is contrary to the public
interest.3 22 But again this is besides the point. Antitrust review applies not
because private restraints on trade are never in the public interest, but
rather because financially interested parties generally cannot be trusted
to determine which restraints are in the public interest and which are
not. Nor does antitrust immunity apply because governmental restraints
are always in the public interest; it applies because disinterested
accountable decisionmakers are generally better positioned to decide which
restraints are in the public interest than courts. Where the governmental
decisionmaker has been bribed, the grounds for immunity are absent
because the decisionmaking process is financially interested and thus can
be improved by being subjected, via antitrust review, to the competitive
Lastly, the Court argued that it would be difficult to determine the
effect of bribes when they are given to a minority of a multi-member
governmental body.323 Suppose, for example, a firm bribes five
legislators and a law restricting trade to the firm's benefit passes by 53-47.
Should the law be struck down on the theory that, had the bribed
legislators voted the opposite way, the law would have failed 52-48? Or should
one simply strike out the bribed votes, concluding that the law would still
have passed 48-47? Alternatively, one might conclude that the
legislature as a whole is not financially interested unless a majority voting for
319. There was evidence of campaign contributions, but those stand on a different footing. See
supra note 314.
320. See Omni, 111 S. Ct. at 1353, 1356.
321. They do, however, bear a relation where they are used by actors with market power to
impose direct costs or delays that hinder competitors. See supra text accompanying notes 245-55.
322. See Omni, IIlS. Ct. at 1353.
323. See id.; see also I AREEDA & TURNER, supra note 105, 204d, at 49-50 (discussing
difficulties of establishing whether bribes caused legislation).
the law has received a bribe. After all, with a majority of disinterested
accountable supporters, one can hardly say that the concerns are the
same as with a fully interested decisionmaker.
These problems are difficult, but do not justify granting antitrust
immunity whenever bribes are given to governmental actors. To begin
with, the difficulties have no application where the sole governmental
decisionmaker has been bribed. Nor do they justify denying an antitrust
plaintiff damages from the briber and the bribed legislators for the harm
caused by the legislative restraint.32 4 A closer question is whether these
problems justify refusing to invalidate legislative restraints produced by
partial bribery. But the arguments against invalidation are not, I think,
ultimately persuasive given the process ideals that underlie the case law.
There may be considerable doubt about what would have actually
happened without the bribery. But if an antitrust court strikes down a
statute passed in part by financially interested legislators, the issue is
effectively remanded back to the legislature to see whether it wishes to
reenact the same statute.3 25 This latter decision will give us our best
evidence of what would have happened without the bribery, and it comes
from a decisionmaking process better than either a partially bribed
legislature or a disinterested but unaccountable antitrust court. I thus
conclude that antitrust courts should invalidate anticompetitive legislative
restraints whenever legislators who could have potentially changed the
result have been bribed.3 26
324. Cf Kirkpatrick Co. v. Environmental Tectonics Corp., 493 U.S. 400, 405-06 (1990)
(holding that the act-of-state doctrine did not immunize a party who bribed a foreign official from
antitrust liability). These damages should, however, cease for anticompetitive injuries suffered after
a disinterested legislature has been alerted to the past bribery but declined to repeal the legislative
In any event, even if, under Omni, antitrust immunity applies to statutes procured by bribery,
nothing in the opinion suggests this immunity should extend to any direct effects of the petitioning.
Bribery should thus be sufficient grounds (as a means of petitioning that is invalid in all contexts) to
impose liability on the petitioner for injuries caused not by the legislation, but by any reputational
injury or costs and delays imposed by the bribing petitioner. See supra Part IV. This would include
liability for the costs of opposing the bribing petitioner in governmental fora.
325. Damages, treble or single, would not and should not be available against the legislature or
the state because they would injure taxpayers whom the government restraint did not benefit and
indeed may well have harmed as consumers. See Elhauge, supra note 25, at 735, 736 n.322.
326. The ancient case of Fletcher v. Peck, 10 U.S. (6 Cranch) 87 (1810), cited in Omni, 111 S.
Ct. at 1353, is not to the contrary. The history of the dispute in Fletcher began when some buyers
got the Georgia Legislature to sell them state land by promising numerous legislators parts of the
land. See 10 U.S. (6 Cranch) at 129. The buyers then re-sold the land to bona fide purchasers who
did not know the land was originally procured by bribery. Id. When the bribes came to light, the
Georgia Legislature responded by passing an act annulling the original sale. See id. at 131.
The relevant questions before the Court were whether a downstream bona fide purchaser should
be divested of title to the land either because the "corruption" of the Legislature made the original
sale inherently void or because the statute annulling the sale was constitutional. In the course of
holding that the purchaser's title was unaffected, the Court did express concern about what to do if a
minority of legislators are bribed and how to decide what should be sufficient corruption to
invalidate a statute. See id. at 130. But these concerns were asides, on which the Court explicitly
Lies, Damned Lies, and Statistics
Many cases have held that a petitioner who knowingly submits false
information to a governmental decisionmaker is not immune from
antitrust liability.32 The grounds for these decisions have not, however,
been well articulated. Usually they proceed on the unelaborated
assertion that such activity is a sham, but this is not very helpful as we have
seen above. Nor have the courts been very precise in distinguishing
between anticompetitive injury that resulted directly from the
defendant's conduct-such as the costs of uncovering the true facts and
opposing the defendant's facts or petition when that would have otherwise
been unnecessary-and antitrust injury that resulted from a restraint the
government imposed in a decisionmaking process infected by the false
information.3 28 Allied Tube, which makes petitioners absolutely immune
for restraints resulting from valid governmental action but liable for
restraints directly resulting from invalid petitioning, highlights the
crucial nature of this distinction.
Where the injury is direct and the lies are illegal under other laws, as
they are in adjudication or regulatory proceedings, antitrust immunity is
inapplicable,3 2 9 just as it is for direct injuries resulting from abuses of
process. 330 This direct injury might, for example, consist of the costs of
countering the defendant's false information in agency proceedings.33 1
The more difficult question is whether, and when, the petitioner
should be liable for governmental restraints adopted in response to his
false petitioning. Clearly, petitioners are generally not liable for
governmental responses to invalid petitioning.332 But immunity might be
denied on two doctrinal grounds: (1) that governmental action procured
did not rely, in an opinion mainly concerned about the inequities, and unconstitutionality under the
Contracts Clause, of allowing courts or the state to annul a prior conveyance of title now held by a
bona fide downstream buyer because of alleged corruption in a prior legislature. See id. at 129-39.
These inequities have no necessary connection to the bribery of legislators. The same inequities have
led courts to protect bona fide purchasers when past title transfers that on their face looked legal
were procured by mere private fraud rather than by bribing public officials. See id. at 133-35. And
these inequities are not nearly so weighty when the question is not whether to deprive a bona fide
purchaser of title but rather whether to remove a present legislative restraint on competition.
Fletcher is thus not binding on the antitrust issue discussed here. Nor are the concerns it
expressed persuasive on that issue. The first concern, about how many legislators must be bribed, is
addressed in text. The second concern, about how much corruption should be enough, is a powerful
argument against a court simply striking down a statute because of what it finds to be "corruption."
But in Fletcher there was no legal or constitutional authority to invalidate the legislation for
corruption. Here antitrust provides the authority and defines the type of activity within its scope.
327. See AREEDA & HOVENKAMP, supra note 10, 204.1, at 68 nn.1-2 (collecting cases).
328. See Calkins, supra note 9, at 342 & nn.78 & 80-81 (collecting cases).
329. Accord AREEDA & HOVENKAMP, supra note 10, 204.1e, at 73-74.
330. See supra Section IV.C.2.
331. The injury will only be anticompetitive, however, if the defendant has the market power to
take advantage of his rival's cost increases. See supra text accompanying note 254.
332. See Allied Tube & Conduit Corp. v. Indian Head, Inc., 486 U.S. 492, 499-511 (1988)
(denying immunity to defendant for damages resulting directly from petitioning activity invalid
by fraud is not "valid"; or (2) that a restraint does not truly "result
from" governmental action when that action is procured by private
fraud. Formal logic, however, cannot tell us when governmental action
that does not itself violate any independent rule of law should
nonetheless be considered "invalid" under antitrust law because of the type of
petitioning that procured it. Nor can it tell us who "caused" an
injury.3 3 Rather, both sorts of doctrinal questions must be settled by
functional factors. The functional questions are the familiar ones:
whether we have the assurance normally provided by a disinterested
accountable decisionmaking process, and if not, whether that process
would be improved by judicial antitrust review.
At one pole, consider deceptive comments made in the political
process. These might admittedly mislead legislatures. But the social facts
upon which legislative decisions are made are highly contestable. One is
reminded of Disraeli's famous statement that "there are three kinds of
lies: lies, damned lies, and statistics."3'34 It is hard to find any policy
debate where one side does not accuse the other of distorting the
statistical evidence. That is the normal process of fighting for public opinion.33 5
Allowing antitrust courts to review the accuracy of political statements
would not only chill political debate generally, but distort the debate by
penalizing those statements with which the courts did not agree. Indeed,
immunity for governmental acts produced by allegedly false statements
in the political process follows afortiorifrom the immunity for the direct
effects of such statements. 36
At the other pole, consider cases where the government has in effect
delegated to a financially interested party the factual determinations that
trigger governmental action. This situation is illustrated by Walker
Process3, 37 where the antitrust defendant allegedly obtained a patent by
fling false information with the Patent Office and then enforced the
patent by instituting a patent infringement suit that was not ultimately
adjudicated because the patent expired before the case could be adjudicated.
The functional process approach allows us to reconcile the Walker
Process Court's holding-that proving these allegations would make the
defendant liable under the Sherman Act for the damages caused to the
plaintiff by the existence and enforcement of the patent-with the
within its context but stressing that no damages were predicated on harm caused by governmental
restraints adopted in response to the invalid petitioning).
333. See supra text accompanying notes 311-13.
334. RESPECTFULLY QUOTED 333 (Suzy Platt ed., 1992).
335. See AREEDA & HOVENKAMP, supra note 10, %204.1c, at 70.
336. See First Am. Title Co. v. South Dakota Land Title Ass'n, 714 F.2d 1439, 1447 (8th Cir.
1983) (allowing immunity where the antitrust plaintiff had "equal access to the legislature to lobby
against the [proposed legislation] and to correct any 'misrepresentations' which may have been
made"), cert. denied, 464 U.S. 1042 (1984); Mark Aero, Inc. v. TWA, 580 F.2d 288, 297 (8th Cir.
1978) (no antitrust liability for lies told to city officials); supra Section IV.C.l.
337. Walker Process Equip. Co. v. Ford Mach. & Chem. Corp., 382 U.S. 172 (1965).
Court's repeated statements in other cases that petitioners are immune
from antitrust liability for governmental acts.
In Walker Process, the relevant governmental action, granting the
patent and then enforcing it pending adjudication, did not rest on any
substantive decision by a disinterested official about the accuracy of the
defendant's patent filing. Such filings are ex parte, and while the Patent
Office can check its own records, it lacks access to other information that
would be necessary to disprove a filing's assertions.3 38 In effect, then, for
facts not covered by its own record, the Patent Office determined
whether, given the defendant's filings, the invention was patentable.
Accordingly, the Patent Office had effectively delegated to the antitrust
defendant the factual determinations necessary to gain a patent. When,
in such cases, the antitrust defendant falsifies the information, the
governmental action is being triggered by a financially interested decision,
and antitrust review should apply.339
The Walker Process exception for false petitioning is thus very
narrow. It applies only when the lie effectively results in a restraint
produced by a financially interested process because the government has
delegated to financially interested parties the factual determinations that
trigger the governmental restraint. 34 Thus, in such a case, one could say
that the restraint results "directly" from the lie,341 just as one says that
the costs and delays imposed by litigation result "directly" from a
litigant's decision to bring strategic litigation. 342 But it is the implicit
functional process view that leads to these doctrinal conclusions.
Between these two poles are adjudications where lies could have
been challenged by opposing litigants but nonetheless succeeded in
procuring adjudicative action that restrained trade. Because, unlike
legisla338. See 3 AREEDA & TURNER, supra note 105, 707a, at 134 (1978).
339. If the lie did not trigger the government action because the invention would have been
patentable even with accurate information, antitrust immunity would apply to the patent restraint
on competition. See 3 id. 707d, at 137-38. Enforcement of the patent might, however, be denied as
a matter of patent law. See 3 id. 707b, at 135-36. There might also be occasions where the false
procurement of a patent does not result in any harm to competition, such as when the only effect is
to alter which firm gets a monopoly. See AREEDA & HOVENKAMP, supra note 10, 707'd, at
340. See also Woods Exploration & Producing Co. v. Aluminum Co. of Am., 438 F.2d 1286,
1292-98 (5th Cir. 1971) (denying antitrust immunity to lying petitioner where the agency
apportioned allowable production levels based on producers' forecasts of how much gas they were
capable of producing), cerL denied, 404 U.S. 1047 (1972); Outboard Marine Corp. v. Pezetel, 474 F.
Supp. 168, 178 (D. Del. 1979) (emphasizing that the defendant would be liable for submitting false
information to the Treasury only if the Treasury made no independent inquiry but rather relied
heavily on the defendant's submission).
341. See Woods Exploration, 438 F.2d at 1295 (concluding that because the agency relied on the
defendant's false statement, the action could not be "said to have flowed from state rather than
private action"); OutboardMarine, 474 F. Supp. at 178 (suggesting that a Treasury decision would
not be "the product of agency action" if the Treasury made no independent factfinding but simply
relied on the defendant's false information).
342. See supra text accompanying notes 241-43.
tors, judges and agencies adjudicate on a formal record often
accompanied by a statement of reasons for the decision, it is easier to
determine whether the lie affected the result. 34 3 Further, the veracity of
adjudicative facts tends to be less debatable than that of social facts. But
antitrust review would nonetheless be inappropriate. The reason is not
that the standards of conduct are lower in adjudication than in ex parte
administrative processes like those in Walker Process. Rather, the reason
is that a disinterested government official has made a substantive
determination about the facts, in a forum that provided an interested
opponent with the opportunity to dispute the alleged lies. Antitrust review in
such circumstances would not so much police financially interested
decisionmaking as it would substitute decisionmaking by antitrust courts for
decisionmaking by the first court. Nothing in the antitrust statutes
authorizes that substitution, and nothing in the objective process ideals
suggests the substitution would be desirable.
Defining the scope of antitrust petitioning immunity is not just a
question of reconciling antitrust concerns about free competition with
First Amendment concerns about the freedom to petition. Antitrust
immunity extends beyond First Amendment protections because the
competitive process guarantees of antitrust are fundamentally
inapplicable to disinterested accountable governmental processes of
decisionmaking. From a functional process perspective, courts adjudicating antitrust
immunity issues emerge as the switchmen of democratic capitalism:
guiding decisionmakers down the tracks of either the competitive or
governmental process depending on which is most appropriate, but not
substituting a track of judicial decisionmaking for either process.
This functional process approach fits and explains the result in every
Supreme Court case adjudicating antitrust petitioning immunity. It also
justifies many features of current doctrine. It justifies the Court's refusal
to assess the substantive merit of restraints produced by disinterested
accountable decisionmakers. It justifies the Court's focus on the
objective incentives, rather than subjective motives, of decisionmakers. And it
justifies the Court's refusal to second-guess the prevailing standards for
providing input into alternative decisionmaking processes. Alternative
positions on all these issues would embroil antitrust courts in making
substantive decisions about how societal resources are allocated rather
than allowing the political or competitive process to make those
Further, the functional process approach resolves many doctrinal
questions and anomalies. It explains why some market activities are
con343. See 1 AREEDA & TURNER, supra note 105, 204c, at 48-49; 1 id. 204d, at 50.
sidered "commercial" and others not. It explains when restraints are
"incidental" to petitioning, and when they "directly result" from that
petitioning rather than from governmental action. It also explains how
to determine whether the petitioning is "valid" for the purposes of
antitrust immunity, particularly where strategic litigation is alleged. Finally,
it helps resolve a host of still open questions about how the Court should
treat petitioning that involves either boycotts aimed at private parties or
bribes and lies that influence governmental decisions.
Perhaps most fundamentally, the objective process approach
permits a more accurate understanding of the relationship between antitrust
petitioning immunity and antitrust state action immunity. These
immunities are not, as has so often been asserted, mere flip sides of each other.
State action immunity sometimes applies when petitioning immunity
does not, and vice versa. But the two immunities do both share the basic
functional process view that the competitive process imposed by antitrust
law is only necessary, and useful, when financially interested
decisionmaking is afoot.
4. Pennington , 381 U.S. at 670; see also CaliforniaMotor, 404 U.S. at 510-11; Noerr,365 U.S. at 136-38.
5. Noerr , 365 U.S. at 144.
6. CaliforniaMotor, 404 U.S. at 511-13; see also Walker Process Equip., Inc. v. Food Mach. & Chem . Corp., 382 U.S. 172 ( 1965 ) (holding that antitrust liability could be imposed for a party's actions in fraudulently obtaining and enforcing a patent).
7. Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690 , 707 - 08 ( 1962 ); see also Noerr, 365 U.S. at 137 , 140 - 41 ( distinguishing immune political activities from non-immune business activities).
8. CaliforniaMotor, 404 U.S. at 513; Pennington, 381 U.S. at 671 & n.4.
9. See, e-g., Stephen Calkins , Developments in Antitrust and the First Amendment: The Disaggregationof Noerr, 57 ANTrTRUsT L .J. 327 , 339 & n.63 (collecting sources).
10. See PHILLIP E. AREEDA & HERBERT HOVENKAMP , ANTITRusT LAW 1 206 ', at 75- 79 (Supp. 1991 ); Calkins, supra note 9, at 356-58; James D. Hurwitz , Abuse of GovernmentalProcesses, the FirstAmendment, and the Boundaries of Noerr, 74 GEo . L.J. 65 , 85 - 88 ( 1985 ); Lawrence A. Sullivan, Developments in the Noerr Doctrine,56 ANTIR L .J. 361 , 366 - 67 ( 1987 ).
11. See Earl W. Kintner & Joseph P. Bauer , Antitrust Exemptionsfor Private Requests for GovernmentalAction:A CriticalAnalysis of the Noerr-PenningtonDoctrine, 17 U.C. DAVis L. REV . 549 , 563 n. 56 ( 1984 ) (collecting cases).
12. Id . at 568- 69 & nn . 80 - 81 (collecting cases); see Calkins, supra note 9 , at 345 n. 92 ( same ).
13. See , e.g., Calkins, supra note 9 , at 338-39; Sullivan, supra note 10, at 368.
14. See , e.g., Daniel R. Fischel , Antitrust Liability for Attempts to Influence Government Action: The Basis and Limits of the Noerr-Pennington Doctrine , 45 U. CHI. L. REV . 80 , 80 - 81 ( 1977 ); Kintner & Bauer, supra note 11, at 553.
15. To provide a rough sense of the magnitude and upward trend of litigation about antitrust petitioning immunity, I conducted a Westlaw search for federal opinions citing Noerr. This search uncovered a total of 718 cases decided between 1961-90 . Only 75 of these opinions came down during 1961 - 70 ; 238 came down during 1971-80; and 405 came down during 1981 - 90 .
16. Allied Tube & Conduit Corp . v. Indian Head, Inc., 486 U.S. 492 ( 1988 ).
17. FTC v. Superior Court Trial Lawyers Ass'n , 493 U.S. 411 ( 1990 ).
18. City of Columbia v. Omni Outdoor Advertising , 111 S. Ct . 1344 ( 1991 ).
19. See id. at 1354-55; Allied Tube, 486 U.S. at 507 n.10.
20. Omni , 111 S. Ct . at 1351-53.
21. TrialLawyers, 493 U.S. at 425 (quoting Allied Tube , 486 U.S. at 503).
22. See id. at 418 (denying immunity to petitioning efforts that succeeded in getting a city council to increase the prices paid to the defendants ); Allied Tube , 486 U.S. at 502-03 ( denying immunity to petitioning efforts that led to widespread adoption by state and local governments of an electrical code hurting defendants' competitors).
23. Allied Tube, 486 U.S. at 499; see also TrialLawyers, 493 U.S. at 424-25 ( denying immunity where the source of the challenged restraint was not public action).
24. See , e.g., Allied Tube , 486 U.S. at 513 ( White , J., dissenting); AREEDA & HOVENKAMP,
100. See , eg., Calkins, supra note 9 , at 331-32.
101. See , eg., Fischel, supranote 14 , at 94-104, 122 . Though beyond the scope of this Article, it should be noted that two other implications might follow if the doctrine were based in the First Amendment. First, such a basis might make the doctrine applicable to non-antitrust restrictions on petitioning activity . See Calkins, supra note 9 , at 330-31 (collecting sources). See generally Zauzmer, supra note 99 . Second, a First Amendment basis might render Noerr inapplicable to efforts to petition foreign governments . See Fischel, supra note 14 , at 120-21; Kintner & Bauer, supra note 11, at 564-65, nn. 63 - 65 ( collecting cases and commentary) . See generally Douglas M. Ely, Note, The Noerr-Pennington Doctrineand the Petitioningof Foreign Governments , 84 COLUM. L. REV. 1343 ( 1984 ).
102. E-g., Union Labor Life Ins . Co. v. Pireno, 458 U.S. 119 , 126 ( 1982 ).
103. See LAURENCE H. TRIBE , AMERICAN CONSTITUTIONAL LAW § 12 - 2 , at 789- 94 (2d ed. 1988 ). The First Amendment would also not protect deliberately deceptive petitioning . See Calkins, supra note 9 , at 349-52.
104. See Handler & De Sevo, supra note 35, at 4 n.14; see also City of Columbia v . Omni Outdoor Advertising , 111 S. Ct . 1344 , 1353 , 1356 ( 1991 ) (making clear that antitrust immunity applied even ifthe activities were illegal under other statutes and laws that would pass constitutional muster).
254. See Edward A. Snyder & Thomas E. Kauper, Misuse ofthe AntitrustLaws: The Competitor Plaintiff, 90 MICH. L. REv. 551 , 564 ( 1991 ).
255. AREEDA & HOVENKAMP, supra note 10, V203 .6, at 61.
256. See Columbia Pictures Indus. v. Professional Real Estate Investors , 944 F.2d 1525 ( 9th Cir . 1991 ), cert. granted, 112 S. Ct . 1557 ( Mar . 30, 1992 ).
257. Grip-Pak , Inc., v. Illinois Tool Works , 694 F.2d 466 , 472 ( 7th Cir . 1982 ), cert. denied, 461 U.S. 958 ( 1983 ) ; see also City of Columbia v . Omni Outdoor Advertising , 111 S. Ct . 1344 , 1354 ( 1991 ) (making a similar statement).
258. See Kintner & Bauer, supra note 11, at 571-72 nn. 97 - 98 ( collecting sources focusing on intent) . See generally Gilson, supra note 162 , at 880-82 ( discussing inherent difficulties in determining the subjective intent of plaintiffs).
259. See RESTATEMENT (SECOND) OF TORTS § 682 ( 1976 ).
260. See supra text accompanying notes 162-63.
261. See Litton Sys. v. American Tel. & Tel ., 700 F.2d 785 , 810 ( 2d Cir . 1983 ), cert.denied, 464 U.S. 1073 ( 1984 ) ; see also AREEDA & HOVENKAMP , supra note 10 , 203 .1, at 23.
262. See , e.g., Columbia Pictures Indus . v. Professional Real Estate Investors , 944 F.2d 1525 , 1532 ( 9th Cir . 1991 ) (equating probable cause and reasonable basis), cert . granted, 112 S. Ct . 1557 ( Mar . 30, 1992 ).
263. See Gilson, supra note 162 , at 879-80.
264. See AREEDA & HOVENKAMP, supra note 10 , 203 .1e, at 31; Gilson, supra note 162, at 879-80; Hurwitz, supra note 10, at 98.
265. See supra text accompanying notes 46-47 , 85 - 91 ; see also note 236 and accompanying text. The Ninth Circuit's opinion in Columbia Picturescontains no mention of the success rate of the litigants in CaliforniaMotor, suggesting the appellate panel was perhaps unaware of it.
266. Professors Areeda and Hovenkamp, for example, reject a test based on the probability of winning, reasoning: "[O]ne must not penalize the assertion of novel legal claims. Such claims sometimes prevail. That a claim is novel or against the weight of precedent does not make it unreasonable . " AREEDA & HOVENKAMP, supra note 10 , 203 .1e, at 31. Unfortunately , Areeda and Hovenkamp do not tell us what does suffice to make a claim unreasonable .
267. See Coastal States Mktg. v. Hunt, 694 F.2d 1358 , 1372 ( 5th Cir . 1983 ).
268. See Sullivan, supra note 10 , at 363.
269. See Grip-Pak, Inc. v. Illinois Tool Works, 694 F.2d 466 , 472 ( 7th Cir . 1982 ), cerL denied, 461 U.S. 958 ( 1983 ) ; see also Premier Elec . Constr. Co. v. National Elec. Contractors Ass'n, 814 F.2d 358 , 372 ( 7th Cir . 1987 ) (Easterbrook , J. ) (reaffirming Posner's position) .
270. See Klein, supra note 245 , at 245.
271. See Einer Elhauge & Stephen Bundy , Knowledge About Legal Sanctions 3 - 11 (John M. Olin Working Paper in Law & Economics, No. 91 - 9) (on file with the CaliforniaLaw Review) (Part I); Einer Elhauge , The Triggering Function of Sale of Control Doctrine , 59 U. CHL L. REV. (forthcoming Fall 1992 ) (manuscript at 33-37, on file with author) (Section III.A).
272. See Klein, supra note 245 , at 245-51; see also Paul L. Joskow & Alvin K. Klevorick , A FrameworkforAnalyzing PredatoryPricingPolicy, 89 YALE L.J. 213 ( 1979 ) (arguing that antitrust
296. See Hughes v. Superior Court , 339 U.S. 460 ( 1950 ) (upholding injunction of boycott that demanded 50% hiring of blacks); see also NAACP v . Claiborne Hardware , 458 U.S. 886 , 915 n. 49 ( 1982 ) (distinguishing Hughes) .
297. See supra text accompanying notes 158 , 179 .
298. Allied Tube & Conduit Corp . v. Indian Head, Inc., 486 U.S. 492 , 499 ( 1988 ) (quoting Eastern R .R. Presidents Conference v. Noerr Motor Freight , 365 U.S. 121 , 136 ( 1961 )) (alteration in original).
299. See , e.g., L. Barry Costilo , Antitrust's Newest Quagmire: The Noerr-Pennington Defense , 66 MICH. L. REV. 333 , 340 - 43 ( 1967 ).