Commercial Litigation and Arbitration

Noerr-Pennington Applicable to Lawsuits Brought by Governmental Entities

From Kearney v. Foley & Lardlner, LLP, 2009 U.S. App. LEXIS 10917 (9th Cir. May 12, 2009):

[Appellant] Kearney claims that the [Noerr-Pennington] doctrine was meant to protect a citizen's right to petition the government, and never intended to bar suit by a private citizen against government officials. In support of her argument, she cites Manistee Town Ctr. v. City of Glendale, 227 F.3d 1090 (9th Cir. 2000), for the principle that the immunization of government officials or entities has been limited to cases in which those officials are lobbying other government officials on behalf of their constituents. She argues that a case of government initiated litigation against a citizen does not fit within the rationale supporting immunity for lobbying.

As a matter of first impression, the Manistee court held that Noerr-Pennington could apply to government entities or officials because the city officials' lobbying efforts amounted to a petition on behalf of citizens. See id. at 1093. There is no reason, however, to limit Manistee's holding to lobbying efforts. In a representative democracy, the court recognized that branches of government often "act on behalf of the people" and "intercede" to "advance their constituents' goals, both expressed and perceived." ... Such intercession is just as likely to be accomplished through lawsuits — the very act of petitioning — as through lobbying. See Theofel v. Farey-Jones, 359 F.3d 1066, 1078 (9th Cir. 2004). Furthermore, an eminent domain proceeding is consistent with the principles laid out in Manistee: a governmental entity acts on behalf of the public it represents when it seeks to take private property and convert it to public use. Cf. New West, L.P. v. City of Joliet, 491 F.3d 717, 721-22 (7th Cir. 2007) (holding that Noerr-Pennington applies to a municipality's condemnation action).

We find that a governmental entity or official may receive Noerr-Pennington immunity for the petitioning involved in an eminent domain proceeding. The agents of that litigation — employees and law firms and lawyers — may benefit from the immunity as well. Freeman v. Lasky, Haas & Cohler, 410 F.3d 1180, 1186 (9th Cir. 2005). Noerr-Pennington may therefore protect Defendants here.

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