29 F.4th 527
9th Cir.2022Background
- Prop. 65 requires California businesses to warn consumers if products expose them to chemicals the state lists as causing cancer; private enforcers must give a 60‑day notice of violation (NOV) before suing and may recover penalties and fees.
- B&G Foods’ “Cookie Cakes” contain acrylamide (formed in baking); Embry (through attorney Noam Glick) served an NOV and sued under Prop. 65 alleging no warning was given.
- B&G filed a § 1983 suit claiming the NOV and suit compelled false speech in violation of the First Amendment and sought injunctive/declaratory relief and damages.
- Defendants moved to dismiss under Rule 12(b)(6), arguing they were not state actors and that the Noerr‑Pennington doctrine immunized their petitioning (and that the sham exception did not apply).
- The district court dismissed with prejudice under Noerr‑Pennington and denied leave to amend; the Ninth Circuit affirmed dismissal on Noerr grounds but reversed the denial of leave to amend and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Defendants’ pre‑suit NOV and Prop. 65 suit are protected petitioning under Noerr‑Pennington | Embry’s enforcement was not entitled to Noerr because states have no First Amendment petition right for private enforcers; Prop. 65 enforcement is unconstitutional as applied | Petitioning (pre‑suit demand and suing) is protected activity even when done by government actors enforcing voter‑adopted statutes | Held protected: Ninth Circuit treated the NOV and suit as petitioning activity covered by Noerr (following Manistee and Kearney) |
| Whether the sham exception defeats Noerr (objective baselessness) | B&G: suit was objectively baseless (Cookie Cakes qualify for NSRL/exemptions) and brought to extort settlements | Defendants: claims had merit; prior enforcement success shows suits were not baseless | Held: B&G failed (on the complaint) to plead objective baselessness; an objective litigant could expect success because acrylamide is present and unlabeled |
| Whether the second sham exception (pattern of meritless filings) applies | B&G: Defendants file/withdraw many NOVs and pursue suits as a pattern to extract settlements | Defendants: aggregate outcomes suggest many successful recoveries, undermining a “files‑without‑regard‑to‑merits” theory | Held: Complaint’s allegations imply substantial success (≈ $1.7M recovered), so second sham exception not plausibly alleged based on pleadings |
| Whether § 1983 can be construed to avoid burdening petitioning (i.e., allow Noerr immunity against § 1983 suits) and relatedly whether dismissal without leave to amend was proper | B&G: § 1983 should allow challenges to unconstitutional enforcement/compelled speech; Noerr should not bar meaningful relief here | Defendants: § 1983 should not be read to subject petitioning conduct to liability; Manistee/Kearney support immunity | Held: Under Manistee/Kearney and Sosa, § 1983 should not be construed to reach protected petitioning — Noerr bars the § 1983 claim as pleaded. But dismissal without leave to amend was error because B&G could plausibly plead facts to trigger a sham exception |
Key Cases Cited
- Eastern Railroad Presidents Conference v. Noerr Motor Freight, 365 U.S. 127 (1961) (origin of Noerr doctrine protecting petitioning activity)
- United Mine Workers v. Pennington, 381 U.S. 657 (1965) (development of Noerr‑Pennington immunity)
- Professional Real Estate Investors v. Columbia Pictures Indus., Inc., 508 U.S. 49 (1993) (objective‑baselessness test for the sham exception)
- Sosa v. DIRECTV, Inc., 437 F.3d 923 (9th Cir. 2006) (articulated the Ninth Circuit’s three‑step Noerr analysis and sham framework)
- Manistee Town Ctr. v. City of Glendale, 227 F.3d 1090 (9th Cir. 2000) (Noerr protection extends to government actors petitioning on behalf of the public)
- Kearney v. Foley & Lardner, LLP, 590 F.3d 638 (9th Cir. 2009) (extended Manistee to litigation by government actors; applied three‑part test)
- USS‑POSCO Indus. v. Contra Costa Cty. Bldg. & Constr. Trades Council, AFL‑CIO, 31 F.3d 800 (9th Cir. 1994) (second sham exception—pattern of meritless filings for harassment)