147 F. Supp. 3d 63
E.D.N.Y.2015Background
- EDF Renewable Development, Inc. (plaintiff) developed a multi-site solar carport project on Long Island; it (through affiliate LIS) held a 20‑year lease with Suffolk County for the Ronkonkoma site, a significant portion of the project.
- LIS had a Power Purchase Agreement with LIPA imposing completion deadlines and penalties; six of seven sites received permits and went forward; Ronkonkoma did not.
- Tritec Real Estate Co. (defendant), a local developer working on a nearby project, met with the newly elected County Executive Bellone and other County officials and lobbied them not to permit plaintiff’s Ronkonkoma installation.
- After Tritec’s outreach, Suffolk County delayed/refused to issue the Ronkonkoma building permit; plaintiff alleges this caused contractual breach with LIPA and damages (equipment costs, development costs, lost profits, attorneys’ fees).
- Plaintiff sued Tritec for tortious interference with the Ronkonkoma lease; Tritec moved to dismiss under Rule 12(b)(6), arguing the Noerr‑Pennington doctrine immunizes its lobbying activity.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether defendant’s lobbying of County officials is actionable tortious interference or protected petitioning under Noerr‑Pennington | Tritec intentionally procured County’s breach of the lease to stop the project and harm plaintiff; its conduct was willful and malicious, causing >$12M in damages | Lobbying County officials to influence a government decision (permit) is petitioning activity protected by the First Amendment and Noerr‑Pennington; only sham or overt corruption falls outside immunity | Court held the conduct was protected petitioning under Noerr‑Pennington and dismissed the tortious interference claim with prejudice |
| Whether the sham or corruption exceptions to Noerr‑Pennington apply | Plaintiff contends Tritec acted solely to harm plaintiff (sham) or engaged in improper conduct | Tritec says it sought to protect legitimate business interests (project incompatibility) and did not engage in overtly corrupt or criminal conduct | Court found allegations showed Tritec sought a favorable governmental outcome (not a sham) and alleged conduct was not overtly corrupt; exceptions do not apply |
Key Cases Cited
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (setting the federal plausibility standard for pleading)
- Ashcroft v. Iqbal, 556 U.S. 662 (pleading must allege factual content permitting plausible inference of liability)
- Eastern R.R. Presidents Conference v. Noerr Motor Freight, 365 U.S. 127 (Noerr doctrine protecting petitioning government)
- United Mine Workers v. Pennington, 381 U.S. 657 (Noerr doctrine development)
- California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508 (petitioning immunity and limits)
- City of Columbia v. Omni Outdoor Advertising, Inc., 499 U.S. 365 (sham exception explained)
- Professional Real Estate Investors, Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49 (successful petitioning cannot be a sham)
- Bath Petroleum Storage, Inc. v. Market Hub Partners, L.P., 229 F.3d 1135 (Noerr immunity extends to state‑law tortious interference claims)
- Alfred Weissman Real Estate, Inc. v. Big V Supermarkets, Inc., 268 A.D.2d 101 (application of Noerr in New York; sham/corruption exceptions discussed)