Corporate & Securities Law

The Second and Ninth Circuits Uphold Antitrust Immunity in Three Recent Cases

By Matthew S. Wild

In January 2009, the United States Court of Appeals for the Second Circuit affirmed a district decision granting a motion to dismiss an action alleging that defendants “conspired to influence the FCC.”  The Court held that such activity cannot give rise to antitrust liability under the Noerr-Pennington doctrine.  Kahn v. iBiquity Digital Corp., No. 07-0475-cv, 2009 WL 102810 (2d Cir. Jan. 15, 2009).  That doctrine provides immunity for, among other things, lobbying the government including agencies which is precisely what the defendants were alleged to have done.  In another case, the United States Court of Appeals for the Ninth Circuit upheld application of the Noerr-Pennington doctrine in Kaiser Health Foundation, Inc. v. Abbott Laboratories, Inc., Nos. 06-55687, 06-55748, 2009 WL 69269 (Jan. 13, 2009).  This time defendant’s commencement of litigation against generic drug manufacturers was protected.  The Noerr-Pennington doctrine also shields litigation as a basis for antitrust liability unless it is “sham” litigation.  The Ninth Circuit affirmed dismissal of the monopolization claims based on Abbott’s seventeen patent infringement lawsuits against generic drug manufacturers noting that it could hardly be sham litigation when Abbott prevailed in seven of them and Abbott “had a plausible argument on which it could have prevailed” in the other ten suits.  Id. at *13.  In Wolfe v. City of Anaheim, No. 07-56031, 2008 WL 542079 (9th Cir. Dec. 31, 2008), the Ninth Circuit affirmed dismissal on summary judgment based on the Local Government Antitrust Act of 1984, 15 U.S.C. section 35(a).  That statute immunizes municipalities from antitrust damages.  Plaintiff had sought to recover damages from the City of Anaheim for alleged wrongful denial of a taxicab franchise under, inter alia, the Sherman Act.  The statute clearly precluded such liability.

Full post as published by Antitrust Commentary on February 17, 2009 (boomark / email).