Antitrust 1 Prof. E. Fox Fall 2004 1 I. Introduction to Antitrust Law 4 a. General Background 4


Right to Petition for State-Action



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Right to Petition for State-Action


  • Noerr-Pennington (1961) Doctrine – competitors have the right to petition for government action that provides exemption from federal antitrust laws; available as a defense even if obtained through illegal means  antitrust laws regulate business, not politics

  • Sham Test – immunity is unavailable if petition is a mere sham:

  • 1) objectively baseless; and 2) conceals an attempt to interfere directly w/competition through government process rather than outcome of the process

  • Lawsuits can be a valid petitioning activity (Otter Tail Power)

  • Allied Tube v. Indian Head (1988) – relationship b/t the Δ and government must be more direct to garner the exception

  • Political Boycott Exception

  • Missouri v. NOW – resort to boycott in a non-competitive political arena for the purpose of influencing legislation is not proscribed by the Sherman Act

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