what is Noerr-Pennington and what does it have to do with Tenderloin Housing Clinic?
some of the lobbying that THC does
NOERR-PENNINGTON DOCTRINE – In general, an effort to influence the exercise of government power, even for the purpose of gaining an anticompetitive advantage, does not create liability under the antitrust laws. In Noerr, the Supreme Court held immune from antitrust liability a combination of rail freight interests which was formed in order to have legislation passed that would grant the members of the combination a competitive advantage over truckers. Noerr, 365 U.S. at 145. The Supreme Court has read Noerr broadly: “Noerr shields from the Sherman Act a concerted effort to influence public officials regardless of intent or purpose.” Pennington, 381 U.S. at 670. “Joint efforts to influence public officials do not violate the antitrust laws even though intended to eliminate competition.” Id. The Supreme Court has applied the Noerr-Pennington doctrine to courts and administrative agencies. California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 510-11 (1972) (California Transport). The Noerr-Pennington doctrine thus protects those who attempt to use the power of government organs, including the judiciary, to further private ends.
There is an important exception: the Noerr-Pennington doctrine does not protect litigation from suit under the antitrust laws if the litigation is a “sham.” The Supreme Court in Noerr recognized that if an action “ostensibly directed toward influencing governmental action, is a mere sham to cover what is actually nothing more than an attempt to interfere directly with the business relationships of a competitor [then] the application of the Sherman Act would be justified.” Noerr, 365 U.S. at 144. See also California Transport, 404 U.S. at 511-16 (remanding for determination of whether the sham exception to the general immunity from the antitrust laws applied).
And guess who used this in court?
Patel v THC – 9th Circuit Court of Appeals (PDF)
After rehearing was denied by the Board of Appeals, the
Patels filed this 42 U.S.C. § 1983 action on behalf of them-
selves and Empress LLC (collectively “the Patels”), alleging
that the government and individual governmental officials had
unlawfully delegated zoning decisions to Shaw. The district
court dismissed the claims against all defendants except
Shaw. Initially, the district court, relying on Branch v. Tunnel,
937 F.2d 1382 (9th Cir. 1991), applied a heightened pleading
standard to the Patels’ constitutional tort claim and dismissed
the complaint with leave to amend. After the Patels filed their
second amended complaint, the district court granted Shaw’s
motion to dismiss with prejudice on the grounds that Shaw’s
activities were protected under the Noerr-Pennington doctrine
and that the Patels had failed to allege sufficient facts demon-
strating that Shaw’s activities were exempt from this protec-
tion. Although noting that in the time since the dismissal of
the Patels’ first complaint, we had decided in Galbraith v.
County of Santa Clara, 307 F.3d 1119, 1123-26 (9th Cir.
2002), to overrule Branch and eliminate the heightened plead-
ing requirement for constitutional tort claims, the district
court proceeded to apply a heightened pleading standard
because the Patels’ claim involved the right to petition gov-
ernmental bodies immune from liability under the Noerr-
Pennington doctrine. The district court also granted in part
Shaw’s motion for attorneys’ fees under 42 U.S.C. § 1988,
awarding Shaw $13,109. This timely appeal followed.
context
Upon learning of the Patels’ efforts
to redevelop the Empress Hotel, Tenderloin Housing Clinic
Executive Director Randall Shaw wrote a letter to San Fran-
cisco Zoning Administrator Lawrence Badiner requesting that
he make a zoning determination regarding the Empress. Shaw
contended in his letter that the Empress had been vacated and
the authorized tourist use abandoned. As a result, Shaw
argued, the entire hotel had reverted to purely residential use
under restrictions of the North of Market Residential Special
Use District, which had been created the year the Empress
was shuttered. After receiving Shaw’s letter, Badiner initiated
an investigation and eventually concluded that the tourist use
of the Empress Hotel had been discontinued for a continuous
period of at least three years and therefore could not be rees-
tablished except in compliance with the present applicable
City codes. The Patels unsuccessfully appealed Badiner’s
zoning determination to the San Francisco Board of Appeals.