Noerr-Pennington’s Furtherance Standard for Petitioning Immunity: Application to Settlements

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Christopher Grengs, Jan 14, 2014

This article explains that only a person’s conduct that is in furtherance of a petition to obtain redress from government, and the effects that are incidental to such conduct, should be immune from liability under laws that would otherwise apply, such as the federal antitrust laws. Under the unidirectional furtherance standard of the Supreme Court’s Noerr-Pennington doctrine, a person’s conduct must be directed toward obtaining governmental action in order to obtain such immunity.

This unidirectional furtherance standard for petitioning immunity has important implications for situations where parties on opposing sides of litigation resolve their dispute by entering into a contract agreement that terminates the litigation as one of its mutually acceptable conditions. Under this standard, such a settlement between private parties should not be immune. By contrast, such a settlement between a private party and government should be immune.

The Supreme Court has not yet considered the specific question of whether Noerr-Pennington petitioning immunity applies to a settlement agreement. But a series of lower court cases involving litigation settlements have given rise to a debate over whether or not such agreements should be immune. Much of the confusion regarding this issue is a consequence of an imprecise reading of Eastern Railroad Presidents Conference v. Noerr Motor Freight,

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