Salem Grain Co. v. Consolidated Grain & Barge Co.
297 Neb. 682
| Neb. | 2017Background
- Salem Grain Company sued Consolidated Grain & Barge (CGB) and several Falls City private actors (members of EDGE, CRA, CARB) alleging they conspired to secure special economic benefits for CGB by concealing municipal actions (annexation, rezoning, blight designation, TIF, grants) and violating Nebraska’s Open Meetings Act, which caused Salem lost profits and storage revenue.
- Salem pleaded claims under Nebraska’s Consumer Protection Act (NCPA) and common‑law claims for civil conspiracy and aiding-and-abetting.
- Defendants moved to dismiss under Neb. Ct. R. Pldg. § 6-1112(b)(6), asserting Noerr‑Pennington/First Amendment immunity and other immunities; some defendants explicitly raised Noerr‑Pennington in their motions.
- The district court dismissed the complaint with prejudice, finding defendants immune from NCPA claims under Noerr‑Pennington and that conspiracy/aiding claims require an underlying tort (not just statutory violations); amendment was futile.
- Salem appealed; the Nebraska Supreme Court reviewed de novo and affirmed dismissal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Noerr‑Pennington immunity bars Salem’s NCPA claims | Noerr‑Pennington is limited to antitrust (Sherman Act) claims and does not bar NCPA claims modeled on the FTCA; alternatively, a conspiracy exception should apply when public officials conspire with private actors | Noerr‑Pennington protects petitioning activity beyond federal antitrust suits; NCPA is construed like federal antitrust/FTC provisions and the First Amendment basis supports immunity; no applicable conspiracy exception | Held: Noerr‑Pennington bars Salem’s NCPA claims; NCPA is tailored to business and construed with federal counterparts, so immunity applies. |
| Whether a “conspiracy” exception to Noerr‑Pennington applies where petitioning involved unlawful means (e.g., NOMA violations) | A conspiracy exception should apply when private actors conspire with public officials to obtain unlawful advantages | Supreme Court precedent rejects a conspiracy exception in the antitrust/NCPA context; only narrow ‘‘sham’’ exception exists | Held: No conspiracy exception applies to NCPA‑based claims here; Omni/Noerr line forecloses that exception for antitrust‑style claims. |
| Whether civil conspiracy and aiding‑and‑abetting claims require an underlying tort beyond a statutory violation | Salem: aiding/conspiracy are independently actionable; statutory violations (NCPA/NOMA) suffice | Defendants: those claims are derivative and require an underlying tortious act (not merely statutory violations) | Held: Conspiracy and aiding/abetting require an underlying tort; statutory violations alone are insufficient. |
| Whether dismissal with prejudice and denial of leave to amend was proper | Salem argued dismissal improper and sought leave to amend | Defendants argued complaint failed as a matter of law and amendment would be futile; Salem conceded amendment would be futile in reply brief | Held: Dismissal with prejudice affirmed because claims fail as a matter of law and Salem conceded futility. |
Key Cases Cited
- Eastern R.R. Conference v. Noerr Motors, 365 U.S. 127 (U.S. 1961) (establishes immunity for petitioning government from antitrust liability)
- United Mine Workers v. Pennington, 381 U.S. 657 (U.S. 1965) (extends Noerr immunity to lobbying executive agencies)
- Omni Outdoor Advertising, Inc. v. Columbia, 499 U.S. 365 (U.S. 1991) (refines Noerr, recognizes sham exception and rejects broad conspiracy exception in antitrust context)
- ACI Worldwide Corp. v. Baldwin Hackett & Meeks, 296 Neb. 818 (Neb. 2017) (discusses Noerr‑Pennington as affirmative defense and its application in state court)
- Green Mountain Realty v. Fifth Estate Tower, 161 N.H. 78 (N.H. 2010) (applies Noerr‑Pennington to state consumer protection act construed with federal FTCA)
- Rodgers v. F.T.C., 492 F.2d 228 (9th Cir. 1974) (applies Noerr immunity to claims under the FTC Act)
- Bergman v. Anderson, 226 Neb. 333 (Neb. 1987) (illustrates that aiding/abetting liability depends on an underlying tort)