FTC Staff Report Examines Noerr-Pennington Doctrine

This post was written by Jeffrey May, editor of CCH Trade Regulation Reports

The FTC staff has released a report by its Office of Policy and Bureau of Competition providing enforcement perspectives on the Noerr-Pennington doctrine. The doctrine shields from antitrust attack private conduct seeking government action. The November 2 report provides the staff's views on how best to apply the doctrine to conduct that imposes great risk to competition but that does not further the First Amendment and government decision-making principles that underlie the doctrine.

The 38-page report describes the development of the doctrine and explains how to delineate its proper parameters. Text of the staff report appears at http://www.ftc.gov/reports/PO13518enfperspectNoerr-Penningtondoctrine.pdf

The staff also recommended that the Commission further describe the proper application of the Noerr doctrine by clarifying (1) that conduct protected by Noerr does not extend to filings, outside the political arena, that seek no more than a ministerial government act; (2) that conduct protected by Noerr does not extend to misrepresentations, outside of the political arena, that meet the standards set forth in the Commission's Unocal decision (CCH Trade Regulation Reporter, FTC Complaints and Orders Transfer Binder 2001-2005,¶15,618); and (3) that conduct protected by Noerr does not extend to patterns of repetitive petitioning, outside of the political arena, that employ government processes, rather than the outcome of those processes, to harm competitors in an attempt to suppress competition.