Green Mountain Realty Corp. v. Fifth Estate Tower, LLC
161 N.H. 78
| N.H. | 2010Background
- Green Mountain and Fifth Estate both develop and operate wireless facilities; Fifth Estate distributed political postcards and other media urging Wolfeboro voters to defeat two town-warrant articles about Green Mountain’s proposed tower and leases; Green Mountain sued under NH CPA for unfair/deceptive acts or practices; Fifth Estate moved for summary judgment arguing CPA does not apply in a political setting and that First Amendment/ NH Constitution protections apply; trial court denied; on appeal, court reverses, applying Noerr-Pennington immunity to CPA claims; ruling impacts whether CPA applies to political campaigning by a business actor.
- Postcards/media accused of calling the proposed tower an eyesore, claiming Green Mountain overcharged, claiming health harms, and asserting financial impacts; materials circulated to voters preceding a special town meeting on September 2005; the town ultimately rejected both warrant articles.
- Court treats the CPA as potentially applicable but ultimately holds Noerr-Pennington immunity applies to Fifth Estate’s conduct, framing the activity as petitioning the government concerning legislation, thus shielding it from CPA liability.
- Court relies on Noerr-Pennington doctrine, extending immunity to petitions before agencies, courts, and political campaigns aimed at influencing legislation, and concludes this defense applies to the CPA, thereby reversing the trial court.
- Conclusion: Noerr-Pennington immunity applies to Fifth Estate’s political campaign; CPA does not apply; judgment for Green Mountain reversed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether CPA applies to political campaign conduct | Green Mountain argues CPA covers deceptive acts even in political context | Fifth Estate argues CPA excludes political speech and Noerr-Pennington immunizes campaign activity | No CPA liability; Noerr-Pennington applies |
| Whether Noerr-Pennington immunity extends to CPA claims | Green Mountain asserts no immunity in political advertising | Fifth Estate claims immunity for efforts to influence government action | Immunity applies to CPA claims |
| Whether commercial/sham exceptions negate immunity | Green Mountain contends commercial purpose defeats immunity | Fifth Estate contends no sham or commercial exception applies | Sham exception inapplicable; immunity remains; no commercial exception undermines immunity in political context |
| Whether findings of fact support application of Noerr-Pennington to this case | N/A | N/A | Court treats campaign as analogous to Noerr circumstances; immunity applies |
| Impact of Noerr-Pennington on CPA procedural posture | N/A | N/A | Noerr-Pennington governs CPA claims; court erred in denying summary judgment to Fifth Estate |
Key Cases Cited
- Rodgers v. F.T.C., 492 F.2d 228 (9th Cir. 1974) (no political arena exception to FTC Act; interpret Noerr-Pennington for CPA guidance)
- Eastern R. Conf. v. Noerr Motors, 365 U.S. 127 (U.S. 1961) (petitioning government is immune from antitrust liability)
- Mine Workers v. Pennington, 381 U.S. 657 (U.S. 1965) (no illegal action when aimed at influencing public officials)
- California Motor Transport v. Trucking Unlimited, 404 U.S. 508 (U.S. 1972) (extension of Noerr-Pennington immunity to administrative agencies)
- Allied Tube & Conduit Corp. v. Indian Head, Inc., 486 U.S. 492 (U.S. 1988) (noerr-pennington protection for petitioning government, even with unethical methods)
- Davric Maine Corp. v. Rancourt, 216 F.3d 143 (1st Cir. 2000) (Noerr-Pennington immunity extends to a range of activities including lobbying and litigation)
- Suburban Restoration Co., Inc. v. Acmat Corp., 700 F.2d 98 (2d Cir. 1983) (immunity extends to CPA-like claims; campaign protected when directed at government action)
- Brzica v. Trustees of Dartmouth College, 147 N.H. 443 (2002) (NH Supreme Court; CPA context considerations cited in statutory interpretation)