{"id":261,"date":"2007-10-15T15:48:12","date_gmt":"2007-10-15T15:48:12","guid":{"rendered":"http:\/\/www.bluoz.com\/blog\/?p=261"},"modified":"2007-10-15T15:48:12","modified_gmt":"2007-10-15T15:48:12","slug":"The-Noerr-Pennington-Doctrine","status":"publish","type":"post","link":"https:\/\/www.bluoz.com\/blog\/2007\/10\/15\/The-Noerr-Pennington-Doctrine\/","title":{"rendered":"The Noerr-Pennington Doctrine"},"content":{"rendered":"

what is Noerr-Pennington and what does it have to do with Tenderloin Housing Clinic?<\/p>\n

some of the lobbying that THC does<\/p>\n

Wikipedia definition<\/a><\/p>\n

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.<\/p>\n

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).<\/em><\/p>\n

And guess who used this in court?<\/p>\n

Patel v THC – 9th Circuit Court of Appeals (PDF)<\/a><\/p>\n

After rehearing was denied by the Board of Appeals, the
\nPatels filed this 42 U.S.C. \u00a7 1983 action on behalf of them-
\nselves and Empress LLC (collectively \u201cthe Patels\u201d), alleging
\nthat the government and individual governmental officials had
\nunlawfully delegated zoning decisions to Shaw. The district
\ncourt dismissed the claims against all defendants except
\nShaw. Initially, the district court, relying on Branch v. Tunnel,
\n937 F.2d 1382 (9th Cir. 1991), applied a heightened pleading
\nstandard to the Patels\u2019 constitutional tort claim and dismissed
\nthe complaint with leave to amend. After the Patels filed their
\nsecond amended complaint, the district court granted Shaw\u2019s
\nmotion to dismiss with prejudice on the grounds that Shaw\u2019s
\nactivities were protected under the Noerr-Pennington doctrine
\nand that the Patels had failed to allege sufficient facts demon-
\nstrating that Shaw\u2019s activities were exempt from this protec-
\ntion. Although noting that in the time since the dismissal of
\nthe Patels\u2019 first complaint, we had decided in Galbraith v.
\nCounty of Santa Clara, 307 F.3d 1119, 1123-26 (9th Cir.
\n2002), to overrule Branch and eliminate the heightened plead-
\ning requirement for constitutional tort claims, the district
\ncourt proceeded to apply a heightened pleading standard
\nbecause the Patels\u2019 claim involved the right to petition gov-
\nernmental bodies immune from liability under the Noerr-
\nPennington doctrine. The district court also granted in part
\nShaw\u2019s motion for attorneys\u2019 fees under 42 U.S.C. \u00a7 1988,
\nawarding Shaw $13,109. This timely appeal followed. <\/p>\n

context<\/p>\n

Upon learning of the Patels\u2019 efforts
\nto redevelop the Empress Hotel, Tenderloin Housing Clinic
\nExecutive Director Randall Shaw wrote a letter to San Fran-
\ncisco Zoning Administrator Lawrence Badiner requesting that
\nhe make a zoning determination regarding the Empress. Shaw
\ncontended in his letter that the Empress had been vacated and
\nthe authorized tourist use abandoned. As a result, Shaw
\nargued, the entire hotel had reverted to purely residential use
\nunder restrictions of the North of Market Residential Special
\nUse District, which had been created the year the Empress
\nwas shuttered. After receiving Shaw\u2019s letter, Badiner initiated
\nan investigation and eventually concluded that the tourist use
\nof the Empress Hotel had been discontinued for a continuous
\nperiod of at least three years and therefore could not be rees-
\ntablished except in compliance with the present applicable
\nCity codes. The Patels unsuccessfully appealed Badiner\u2019s
\nzoning determination to the San Francisco Board of Appeals.<\/p>\n","protected":false},"excerpt":{"rendered":"

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