The Noerr-Pennington doctrine immunizes from antitrust scrutiny under the Sherman Act legitimate collective efforts to petition U.S. legislative, executive and judicial bodies into taking competition-restricting action. While it was clear after the doctrine was first created by the U.S. Supreme Court that such conduct was protected when it involved petitioning U.S. government entities, lower courts and commentators disputed whether the doctrine provided the same antitrust immunity to joint efforts to petition foreign governments. There are two reasons for this tension: First, lower courts and commentators disagreed about whether the Court had spoken on the issue, and, second, they questioned the grounds upon which it putatively based its Noerr decision, as well as whether those same grounds would also apply to like conduct taken abroad.
In 1983, the U.S. Court of Appeals for the 5th Circuit held that conduct as it related to influencing foreign governments was protected from antitrust liability, holding the opposite of several prior cases that considered the issue. However, the precise grounds for the decision were unclear. Thereafter, courts began to follow the 5th Circuit’s lead, but without further analysis as to the basis for applying the doctrine. Recently, two district courts in California considered the issue. One applied the doctrine’s protections to foreign petitioning without much analysis, while the other could be read to implicitly suggest it might have done so under different facts. Thus, while there appears to be a modest trend favoring application of the doctrine to foreign conduct, courts are still elusive as to providing a clear articulation of the basis for immunizing such conduct. Until this occurs, companies should not take much comfort in these recent developments when considering petitioning governments abroad.
