Antitrust Exemptions for Private Requests for Governmental Action: A Critical Analysis of the Noerr-Pennington Doctrine

Section 1 of the Sherman Act makes it unlawful for persons to engage in a combination or conspiracy, in restraint of trade. A variety of undertakings by persons seeking legislative action, judicial relief, administrative agency activity, or action by the executive branch of government may result in governmental steps which restrain competitors or diminish competition. Indeed, the very act of seeking governmental intervention, even if unsuccessful, may have adverse competitive effects. Similarly, monopolization or attempts to monopolize, proscribed by Section 2 of the Sherman Act, might actually be advanced by governmental activities or by an individual merely seeking governmental assistance. Other provisions of the antitrust laws may also involve or be advanced by governmental intervention and private requests for such assistance. Although such conduct may raise competitive concerns, petitions by individuals or groups of individuals for governmental action or intervention implicate other important political and constitutional values. In Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., the seminal decision dealing with the interface of antitrust prohibitions and the right to seek governmental relief, the Supreme Court identified the various reasons why private requests for such action are generally immunized from challenge under the antitrust laws. This Article will assess the present state of the law in this area, focusing on judicial attempts to resolve these thorny questions. Part I summarizes the development of the Noerr-Pennington doctrine and subsequent judicial limitations. Part II considers the applicability of the Noerr-Pennington doctrine to various agencies. Part III discusses whether certain methods of petitioning the government fall outside the exemption and the extent to which that exemption is dependent on the type of governmental body being petitioned. Part IV focuses on the most frequently litigated exception, the sham petition. Part V analyzes the special problems posed by these cases and proposes suggestions for resolution