February 2021

Circuits Reinforce Split Over When Noerr-Pennington Shields Serial Litigants

Business litigation partner Dylan Carson co-authored an article with attorney Scott Russell for the American Bar Association (ABA)’s The Antitrust Source, titled “Circuits Reinforce Split over When Noerr-Pennington Shields Serial Litigants.”

In the 1960’s, the Supreme Court conferred antitrust immunity on lawsuits filed against rivals with the creation of the Noerr-Pennington Doctrine (Noerr), which exempts certain types of petitioning, protests, and litigation from liability under the antitrust laws, unless those actions are a “sham.” The article unpacks the split between how U.S. Circuit Courts identify “sham” petitioning under Noerr and analyzes both sides of the issue.

In the article, Carson and Russell emphasize that the Supreme Court will have to resolve the circuit courts’ split decisions over when a pattern of petitions constitutes a sham. The authors note that until the Supreme Court resolves the split, a competitor that determines that the benefits from filing repetitive but reasonable petitions outweighs the litigation costs will have an incentive to engage in serial petitioning.

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