By Nicholas Evan Hakun (Temple University)
The First Amendment allows a business to sue its competitor even if its goal is to destroy them. It should not, however, protect a lawsuit designed solely to inflict harm collateral to the proceedings. Unfortunately, courts routinely fail to distinguish legitimate suits from predatory shams and have no solution for the litigant whose claims simultaneously achieves both goals.
Sophisticated businesses are weaponizing litigation to inflict harm on their competitors and being rewarded with antitrust petitioning immunity thanks to the Noerr-Pennington doctrine. After decades of divergence between the courts and economists, the doctrine’s sham exception has been outsmarted. Economic analysis proves the sham exception is woefully underinclusive and that more complex predatory suits are being inappropriately immunized. The Third Circuit’s recent AbbVie decision highlights how the existing sham standard sometimes forces courts into anticompetitive outcomes. My proposal is an aggressive, economically robust solution to properly, and fairly, prosecute predatory litigation.
