Salem Grain Co. v. Consolidated Grain & Barge Co., 2017 Neb. LEXIS 158

Background

Salem Grain Company operates grain warehouses in Richardson County, Nebraska; Consolidated Grain & Barge Co. (CGB) opened a competing warehouse in Falls City in 2012.
Salem sued CGB and several private individuals (members of local economic development bodies) alleging they conspired to secure special economic benefits for CGB by concealing governmental actions (annexation, rezoning, TIF, grants/bonds) and thereby violating Nebraska’s Consumer Protection Act (NCPA) and Open Meetings Act (NOMA).
Salem alleged resulting anticompetitive economic harms (lost profit and storage revenue).
Defendants moved to dismiss under Neb. Ct. R. Pldg. § 6-1112(b)(6), asserting Noerr–Pennington immunity and other defenses; the district court dismissed with prejudice for failure to state a claim and found amendment futile.
Salem appealed, arguing (inter alia) Noerr–Pennington did not bar NCPA claims, a conspiracy exception should apply, and that conspiracy/aiding-and-abetting claims can stand without an underlying tort.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Noerr–Pennington immunity bars Salem’s NCPA claims	Noerr–Pennington is narrow and applies only to antitrust (Sherman Act) claims; NCPA §§ 59-1602/1603 track FTCA and focus on consumer protection, so immunity should not apply	Noerr–Pennington protects petitioning conduct even outside pure Sherman Act claims; NCPA is construed like federal antitrust/FTCA and is tailored for business, so immunity applies; First Amendment petition right supports broader immunity	The court held Noerr–Pennington bars Salem’s NCPA claims; NCPA construed as antitrust-like and immunity applies to petitioning conduct in political arena
Whether a “conspiracy” exception to Noerr–Pennington applies when public officials are involved	Salem urged a conspiracy exception where political actors conspire with private actors to obtain unlawful benefits	Defendants relied on U.S. Supreme Court precedent rejecting a conspiracy exception in the antitrust context and on First Amendment grounds	Court held no conspiracy exception applies to NCPA/antitrust-based claims; Omni forbids that exception when claim is antitrust-based
Whether civil conspiracy and aiding-and-abetting are actionable without an underlying tort	Salem argued those doctrines impose liability for assisting wrongful conduct and need not rest on a separate underlying tort	Defendants argued those claims require an actionable underlying tort; statutory violations alone are insufficient	Court held both claims require an underlying tort (not merely statutory violations); Salem failed to plead such a tort
Whether dismissal with prejudice (and denial of leave to amend) was appropriate	Salem contended dismissal was premature and sought leave to amend / jury trial	Defendants maintained the pleadings showed legal deficiencies and amendment would be futile	Court affirmed dismissal with prejudice, noting Salem conceded amendment would be futile and failed to state claims

Key Cases Cited

Eastern R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127 (Noerr–Pennington doctrine protects petitioning government from antitrust liability)
United Mine Workers v. Pennington, 381 U.S. 657 (extension of Noerr immunity to lobbying of executive agencies)
Columbia v. Omni Outdoor Advertising, Inc., 499 U.S. 365 (rejects a broad conspiracy exception to Noerr in antitrust context; identifies sham exception)
ACI Worldwide Corp. v. Baldwin Hackett & Meeks, 296 Neb. 818 (Noerr–Pennington is an affirmative defense; discussion of doctrine’s scope in Nebraska law)
Bergman v. Anderson, 226 Neb. 333 (aiding-and-abetting claim depends on underlying actionable tort)
Eicher v. Mid America Fin. Invest. Corp., 275 Neb. 462 (civil conspiracy requires an underlying tort; example where fraud supported conspiracy)
State ex rel. Douglas v. Associated Grocers, 214 Neb. 79 (NCPA § 59-1603 construed in accordance with federal antitrust law)