For over two decades, courts have considered the applicability of the Noerr-Pennington
doctrine to immunize an antitrust defendant from liability where the defendant engages in
protected First Amendment petitioning activity, including petitioning before a court.2 Despite
this long history, Noerr-Pennington immunity remains a controversial and somewhat untested
area of law, often subject to novel questions. These novel questions frequently take place at the
interstitial spaces of law and may not be clearly within settled categories of protected activities.
Rather, in these situations, a judge may need to engage in an interpretive exercise to consider
whether a particular form of petitioning falls within the rubric of protected conduct.
Different judges may approach these issues in different ways; there is no “rulebook”
neatly summarizing every form of petitioning and classifying it as a ball or strike. Rather, judges
must undertake some interpretive exercise, considering whether the questioned activity more
closely resembles protected or unprotected activity. Unlike Ronald Dworkin’s fictional Judge
Hercules,3 the U.S. district courts lack the time and resources to consider the entire spectrum of
law to arrive at a single “right answer” in every case. Rather, our real-life jurists have to wade
through competing principles to arrive at the best possible answer, and different judges will, of
necessity, weigh these considerations differently.
When deciding these difficult questions—so-called “hard cases”—it is our view that in the
real world there is often no single right answer, and certain forms of petitioning activity may
reside permanently in these interstices, perhaps subject to case-by-case adjudication. A recent
case decided in the U.S. District Court for the District of Massachusetts is illustrative. In In re
Nexium (Esomeprazole) Antitrust Litigation,4 the court considered the applicability of Noerr-
Pennington immunity to consent decrees. Here, we discuss the court’s well-articulated decision,
and also provide an alternative argument that illustrates the ambiguity in doctrinal
We do not suggest that the applicability of the Noerr-Pennington doctrine in Nexium was
clear, or that, as a general matter, the activity at issue should or should not be protected. Like
1 Respectively, Partner and Senior Associate in the Antitrust and Competition Practice group in Baker Botts
LLP’s Washington D.C. office.
2 United Mine Workers of Am. v. Pennington, 381 U.S. 657, 669–70 (1965); Eastern R.R. Presidents Conference v.
Noerr Motor Freight, Inc., 365 U.S. 127, 136 (1961); see also California Motor Transp. Co. v. Trucking Unlimited, 404
U.S. 508, 510 (1972) (extending Noerr-Pennington immunity to petitioning before a court).
3 RONALD DWORKIN, LAW’S EMPIRE (1986).
4 2013 WL 4832176 at *1 (D. Mass., Sept. 11, 2013).
Schrödinger’s Cat, both alive and dead at the same time,5 we suggest that in this case it might
appear to be both, depending on the interpretation of Noerr-Pennington’s strictures by the court.
That is, much of the ultimate determination is informed by the observer/judge, who will then
decide whether the cat is “dead or alive,” i.e., whether the petitioning activity is protected or not
protected. While all this may be redolent of the metaphysical, we attempt to disentangle the
various arguments below, not to suggest that any particular view is correct, but to support our
notion that practitioners must embrace the inherent ambiguity.
II. SCHRÖDINGER’S CAT IS DEAD: THE PETITIONING ACTIVITY IN QUESTION IS
A brief description of the facts underlying Nexium will suffice for our purposes. In
Nexium, plaintiffs alleged they paid higher prices for a brand name drug because less expensive
generic versions were prevented from entering the market due to defendants’ settlement with
three generic manufacturers. Defendants moved to dismiss the complaint on a number of
grounds, arguing that regardless of whether they could be held liable under the antitrust laws for
such conduct, the settlement with the generic manufacturers was immune from antitrust liability
under Noerr-Pennington because it was entered as a consent judgment, formalized by a New
Jersey federal district court, as opposed to a settlement agreement, memorialized only by
agreement of the parties. The court denied defendants’ motions to dismiss in part because it
found that the consent judgments memorializing the reverse payment settlement agreements
were not entitled to Noerr–Pennington immunity.6
In reaching this conclusion, the court noted that there was “little guidance” as to whether
Noerr-Pennington should apply to consent judgments, and relied largely on a thirteen-year old
article by Professor Raymond Ku (now at Case Western Reserve University School of Law)
published in the Indiana Law Review suggesting a test for determining when Noerr-Pennington
immunity should apply. Ku proposes a means/source test, where immunity attaches when the
following conditions are met:
1. “the conduct represents valid petitioning. Valid petitioning is defined as a formal or
informal attempt to persuade an independent governmental decision maker consistent
with the rules of the political forum in question, and
2. any anticompetitive harms flow directly or indirectly from those persuasive efforts.”7 Ku
then notes that this test can be simplified and “collapsed into a single inquiry: Is the
private conduct a valid effort to influence government?”8
The court adopted Ku’s test, holding that “entry of a consent judgment cannot be
construed as conduct that is ‘incidental’ to litigation.” 9 The court also found that the defendants
5 For a good example of Erwin Schrödinger’s famous 1935 thought experiment, see
Alternatively, for a quick explanation by that esteemed physicist, Sheldon Cooper, on the sitcom The Big
Bang Theory, view this You Tube clip, http://www.youtube.com/watch?v=LFBrRKnJMq4.
6 Nexium, 2013 WL 4832176 at *1.
7 Raymond Ku, Antitrust Immunity, the First Amendment and Settlements: Defining the Boundaries of the Right
to Petition, 33 IND. L.REV. 385, 404 (2000).
8 Id. at 421.
could have “simply stipulat[ed] to a dismissal” and, moreover, that a “decision of a court that
serves merely to memorialize a bargained-for agreement that could have otherwise been resolved
without judicial intervention ought not benefit from the exemption allowed by Noerr-
It is interesting to consider how the court arrived at this decision. Certainly, no
established precedent directed the result. Given this lack of precedent, the court needed an
interpretive foundation to guide its decision. Here, the court weighed the competing theories and
principles at stake and focused on the degree of judicial entanglement with the activity at issue,
holding that “where a judge plays nothing more than a perfunctory role in branding a privately
ordered settlement with the imprimatur of law, the protections of Noerr-Pennington are not
The key distinction here was found to be the “meaningful difference between action that
is truly governmental in substance and action that is simply governmental in form.”12 In order to
come to this position, the court needed to consider two countervailing principles: the protected
First Amendment right to petition, and the inherently limited nature of Noerr-Pennington
The court’s reasoning leaned heavily on Professor Ku’s contention that consent decrees
are often orchestrated by the parties and presented to the court as a “fait accompli.”13 Thus, the
court appeared to place the burden on the defendants to demonstrate that the consent decrees
were subject to judicial deliberation; something more than a “perfunctory role in branding a
privately ordered settlement with the imprimatur of law . . .”14 On the record, the court found
that defendants did not demonstrate that the consent decree was subject to substantive judicial
We do not opine here on the court’s decision on the facts, or even the substance of the
opinion. We note that the court chose to take a narrowly cabined view of the doctrine, adopting
Professor Ku’s view that a consent decree does not require the court to “approve the substance of
the agreement.”15 As a matter of principle and legal theory, the court predicated its decision on
concerns that “[a]dopting the alternative view would provide litigants with an avenue wholly
impervious to antitrust scrutiny simply by seeking out a court’s rubber-stamped approval.”16 We
next turn to a different analytical framework, one that credits consent decrees with more net
9 Nexium, 2013 WL 4832176 at *19.
13 Id. at 18 (citing Ku, 33 IND. L.REV. at 428).
14 Nexium, 2013 WL 4832176 at *20.
15 Id. (citing Ku, 33 IND. L.REV. at 429)
16 Id. at 19.
III. SCHRÖDINGER’S CAT IS ALIVE: THE PETITIONING ACTIVITY IS PROTECTED:
Is there a meaningful distinction between private settlement agreements and
As discussed above, the interpretative turn in this case focuses on the distinction, or lack
thereof, between a private settlement and a consent decree; a distinction which the court
described as “far from obvious and modest at best.”17 It is true, as both the court and Professor
Ku note, that private settlement agreements leading to the dismissal of a suit under Rule 41(a)18
do not generally qualify for Noerr-Pennington immunity, but others may find the distinction less
On this view, a broader distinction between the two might focus on other factors. For
example, dismissals under Rule 41 do not require court approval to be effected, “[do] not imply
judicial approval of the underlying settlement agreement,” and “impl[y] no view of the merits of
the agreement and confer no immunities on the settling parties.”19 Moreover, private settlement
agreements are not judicial orders, and may be properly characterized as private contractual
The difference between consent judgments and private settlements has been long
recognized by courts. In 1932, the Supreme Court in United States v. Swift “reject[ed] the
argument . . . that a decree entered upon consent is to be treated as a contract and not a judicial
act.”20 Consent decrees have been held to be more certain than private settlement agreements,
and thus afforded more deference, primarily because of the judicial oversight involved and the
recourse available to parties for any failure to abide by the agreement.21 As the Fifth Circuit in
United States v. Miami noted, “the only penalty for failure to abide by [a settlement] agreement is
another suit. . . . A consent decree, although founded on the agreement of the parties, is a
A number of other circuits have followed suit. In Rowe v. Jones, the Eleventh Circuit
found that “because consent decrees are entered by the court and are judicially enforceable, they
function like any other court order or judgment and thus may be enforced by judicial sanctions,
including citation for contempt if [they are] violated.”23 The Ninth Circuit in SEC v. Randolph
likewise held that a consent judgment has “the force of res judicata, and it may be enforced by
judicial sanctions, including, as in this case, citations for contempt.”24
The lack of judicial oversight for settlements under Rule 41 versus the attention given
consent judgments makes sense. While a simple dismissal for monetary value is unlikely to affect
17 Id. at 18.
18 Fed. R. Civ. P. 41(a).
19 SmithKline Beecham Corp. v. Pentech Pharms., 261 F. Supp. 2d 1002, 1008 (N.D. Ill. 2003).
20 286 U.S. 106, 115 (1932).
21 See Schering-Plough, 402 F.3d at 1072 (“Veritably, the Commission's opinion would leave settlements,
including those endorsed and facilitated by a federal court, with little confidence.”).
22 664 F.2d 435, 439-40 (5th Cir. 1981).
23 483 F.3d 791, 797 (11th Cir. 2007) (internal quotation marks omitted) (emphasis added).
24 736 F.2d 525, 528 (9th Cir. 1984).
third parties or require the involvement of the judge, consent decrees “virtually by definition will
contain equitable provisions” that a judge must evaluate before entering a judgment.25
As discussed above, both the court in Nexium and Professor Ku take a more skeptical
view of a court’s role in approving a consent decree. Professor Ku goes so far as to suggest that a
reviewing court will merely “wink at them or tacitly approve them” because they would be
“hard-pressed to reject” such agreements.26 Indeed, the court in Nexium noted that “it is unclear
how much of the content found within the consent judgments is properly attributable to the New
Jersey District Court judge’s deliberation” and it therefore could not, in the court’s view, be fairly
said that the judge “endorsed the terms of the settlement agreements.”27
A jurist might take a more sanguine view of the role of the courts in approving consent
decrees, considering that “[i]n the absence of clear evidence to the contrary, courts presume that
public officers [such as judges] properly discharge their duties” and thus “consent decrees . . . are
reasonably presumed valid and in conformity with the law.”28 As noted by Judge Posner in
SmithKline Beecham Corp. v. Pentech Pharms., before entering a consent judgment, “the judge
issuing it must determine that it does not offend public policy, as by harming third parties,
before he can approve it.” 29 This requires judges to evaluate whether the agreement is
“fundamentally fair, adequate and reasonable.”30
Given this presumption that a court exercised its due diligence in approving a consent
order, a court might find the question resolved, since this would more closely resemble any other
court filing, rather than a private contract.31 As the Ninth Circuit held in Sessions Tank Liners,
Inc. v. Joor Mfg., Inc., “deconstructing the decision-making process to ascertain what factors
prompted the various governmental bodies to erect the anticompetitive barriers . . . runs afoul of
the principles guiding the Parker and Noerr decisions.”32 If we follow this line of reasoning, the
alleged harm in Nexium would at least be indirectly related to the petitioning activity, and Noerr-
Pennington immunity should attach.
25 Donovan v. Robbins, 752 F.2d 1170, 1176 (7th Cir. 1985).
26 33 IND. L. REV at 433.
27 Id. at 20.
28 See Kohli v. Gonzales, 473 F.3d 1061, 1068 (9th Cir. 2007); Abdul-Akbar v. Watson, 4 F.3d 195, 205 (3d Cir.
29 261 F. Supp. 2d at 1008 (emphasis added).
30 United States v. Oregon, 913 F.2d 576, 580 (9th Cir. 1990).
31 Indeed, Noerr-Pennington immunity has been extended to many forms of petitioning only indirectly related
to a court filing, including settlement offers, pre-litigation threats of suit, and other activity “reasonably and
normally attendant upon effective litigation.” See Cardtoons, L.C. v. Major League Baseball Players Ass'n, 208 F.3d
885, 890 (10th Cir. 2000) (internal quotations omitted); McGuire Oil Co. v. Mapco, Inc., 958 F.2d 1552, 1560 (11th
Cir. 1992) (holding that “threats, no less than the actual initiation of litigation, do not violate the Sherman Act”);
Columbia Pictures Indus., Inc. v. Prof'l Real Estate Investors, Inc., 944 F.2d 1525, 1528 (9th Cir. 1991) (holding that a
“decision to accept or reject an offer of settlement is conduct incidental to the prosecution of the suit and not a
separate and distinct activity which might form the basis for antitrust liability”); Coastal States Marketing, Inc. v.
Hunt, 694 F.2d 1358, 1367 (5th Cir. 1983) (“If litigation is in good faith, a token of that sincerity is a warning that it
will be commenced and a possible effort to compromise the dispute.”).
32 17 F.3d 295, 300 (9th Cir. 1994).
IV. SCHRÖDINGER’S CAT IS BOTH ALIVE AND DEAD: HARD CASES
As demonstrated above, there is no precedent or authority providing a clear answer as to
whether consent orders are protected by Noerr-Pennington immunity. Courts will take different
views of the amount of deference due to any sort of petitioning activity, and whether such
petitioning falls within the penumbra of protected activities. It may be that upon consideration
by an appellate court, one view or the other will take hold.33
In the meantime, litigants and practitioners will need to consider that, until the box is
opened, certain types of petitioning activities will reside in two states of being, and the judge may
decide which one applies on a case-by-case basis.
33 The Supreme Court did not reach this issue in FTC v. Actavis, Inc., 570 U.S. ___ (2013), despite an
opportunity to do so.