Salem Grain Co. v. Consolidated Grain & Barge Co.
297 Neb. 682
| Neb. | 2017Background
- Salem Grain Company (Salem) operates grain warehouses in Richardson County, NE; Consolidated Grain & Barge Co. (CGB) opened a competing warehouse in Falls City in 2012.
- Salem sued CGB and several private individuals (members/officers of local economic-development bodies) alleging they conspired to secure special public economic incentives for CGB by violating Nebraska Open Meetings Act (NOMA) and thereby injuring Salem’s business.
- Salem pleaded violations of Nebraska’s Consumer Protection Act (NCPA) (Neb. Rev. Stat. §§ 59-1602, 59-1603) and causes of action for civil conspiracy and aiding-and-abetting; sought damages for lost profits and storage revenue.
- Defendants moved to dismiss under Neb. Ct. R. Pldg. § 6-1112(b)(6), asserting Noerr–Pennington immunity (petitioning the government), and other immunities; some defendants explicitly raised Noerr–Pennington in their motions.
- The district court dismissed Salem’s complaint with prejudice, finding NCPA claims barred by Noerr–Pennington and that conspiracy/aiding-and-abetting claims required an underlying tort beyond mere statutory violations; Salem appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Noerr–Pennington immunity bars Salem’s NCPA claims | Noerr–Pennington is narrow and limited to antitrust; NCPA (modeled on FTCA) differs; if doctrine applies, a conspiracy exception should exist when private actors conspire with public officials | Noerr–Pennington extends beyond federal antitrust to state consumer/antitrust-type statutes and is grounded in the First Amendment; no conspiracy exception applies to antitrust-based claims; defendants were petitioning government for economic development, so immune | Held: Noerr–Pennington applies to NCPA claims here; defendants immune; conspiracy exception not available because Salem’s theory is antitrust/statutory in nature rather than a pure First Amendment claim |
| Whether a conspiracy or aiding-and-abetting claim can stand absent an underlying tort | Salem: aiding/abetting or conspiracy liability can arise from aiding wrongful statutory conduct (NCPA/NOMA violations) without a separate tort | Defendants: civil conspiracy and aiding/abetting require an underlying tort (not merely statutory violations) | Held: Conspiracy and aiding-and-abetting require an underlying actionable tort; statutory violations alone are insufficient |
| Whether defendants properly raised Noerr–Pennington in dismissal motions | Salem: some defendants did not expressly raise the defense, so applying it to all was error | Defendants: defense was timely raised by principal defendants and provided fair notice; affirmative defense may be decided on § 6-1112(b)(6) if apparent on face of complaint | Held: No plain error; defense sufficiently raised and Salem had fair notice; applying immunity to all appellees was proper |
| Whether leave to amend or jury demand should have been allowed | Salem: dismissal with prejudice and denial of amendment/jury trial was improper | Defendants: dismissal proper because claims fail as a matter of law; amendment would be futile | Held: Salem conceded amendment would be futile; dismissal with prejudice affirmed; jury demand issue not reached further |
Key Cases Cited
- Eastern R. Conf. v. Noerr Motors, 365 U.S. 127 (doctrine: petitioning government immune from antitrust liability)
- United Mine Workers v. Pennington, 381 U.S. 657 (extended Noerr immunity to administrative lobbying)
- Columbia v. Omni Outdoor Advertising, Inc., 499 U.S. 365 (clarified Noerr–Pennington, recognized sham exception, rejected broad conspiracy exception in antitrust context)
- ACI Worldwide Corp. v. Baldwin Hackett & Meeks, 296 Neb. 818 (Nebraska decision recognizing Noerr–Pennington as an affirmative defense and its application beyond pure federal antitrust contexts)