Salem Grain Co. v. Consolidated Grain & Barge Co.
297 Neb. 682
| Neb. | 2017Background
- Salem Grain Company operated a grain elevator in Richardson County, Nebraska; Consolidated Grain & Barge Co. (CGB) opened a competing facility in Falls City after receiving local economic incentives.
- Salem sued CGB and several local private individuals (members/officers of EDGE, CRA, CARB) in their individual capacities, alleging they conspired to secure special privileges for CGB by concealing public actions and violating the Open Meetings Act (NOMA), causing anticompetitive injury.
- Salem pleaded violations of Nebraska’s Consumer Protection Act (NCPA), NOMA, civil conspiracy, and aiding-and-abetting, claiming lost profits and storage revenue from CGB’s market entry.
- Defendants moved to dismiss under Neb. Ct. R. Pldg. § 6-1112(b)(6), asserting Noerr–Pennington and other immunities; some defendants explicitly raised Noerr–Pennington in their motions.
- The district court dismissed the complaint with prejudice, holding (1) Noerr–Pennington immunity bars Salem’s NCPA claims and (2) conspiracy and aiding-and-abetting claims require an underlying tort (not just statutory violations); Salem appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Noerr–Pennington immunity applies to Salem’s NCPA claims | Noerr–Pennington is limited to antitrust (Sherman Act) claims and does not bar claims under the NCPA (modeled partly on FTCA); alternatively, a conspiracy exception should apply when public officials conspire with private actors | Noerr–Pennington extends to state antitrust/consumer-protection claims grounded in federal analogues and also rests on First Amendment petition rights, so it bars suit; no conspiracy exception applies to antitrust-based claims | Court held Noerr–Pennington bars Salem’s NCPA claims because NCPA is construed with federal antitrust/FTCA principles and is tailored to business (not political) activity; conspiracy exception does not apply here |
| Whether a "conspiracy" exception to Noerr–Pennington applies where public officials allegedly acted unlawfully | Salem urged adoption of a conspiracy exception for unlawful petitioning by public actors and private conspirators | Defendants relied on U.S. Supreme Court precedent rejecting a conspiracy exception in the antitrust/Noperr context; First Amendment/antitrust framing controls | Court rejected a conspiracy exception because Salem’s theory is predicated on antitrust/consumer-protection law rather than a pure First Amendment claim |
| Whether civil conspiracy and aiding-and-abetting are actionable without an underlying tort (e.g., based solely on statutory violations) | Salem argued aiding/abetting and conspiracy are independent wrongful acts and do not require an underlying tort beyond statutory violations (NCPA, NOMA) | Defendants argued those claims are derivative and require an underlying tortious act to be actionable | Court held those claims require an underlying tort; statutory violations alone (without an independent tort) are insufficient |
| Whether dismissal with prejudice and denial of leave to amend were appropriate | Salem contended dismissal was erroneous and sought amendment/jury demand | Defendants argued failure to state a claim; amendment would be futile given immunity and lack of underlying tort | Court affirmed dismissal with prejudice, noting Salem conceded amendment would be futile |
Key Cases Cited
- Eastern R. Conf. v. Noerr Motors, 365 U.S. 127 (U.S. 1961) (private petitioning of government is immune from antitrust liability)
- Mine Workers v. Pennington, 381 U.S. 657 (U.S. 1965) (Noerr immunity applies to efforts to influence executive agencies)
- Columbia v. Omni Outdoor Advertising, Inc., 499 U.S. 365 (U.S. 1991) (refined Noerr–Pennington; recognized "sham" exception and rejected broad conspiracy exception in antitrust context)
- ACI Worldwide Corp. v. Baldwin Hackett & Meeks, 296 Neb. 818 (Neb. 2017) (Noerr–Pennington is an affirmative defense; discussed scope and waiver)
- Bergman v. Anderson, 226 Neb. 333 (Neb. 1987) (aiding-and-abetting actionable only where underlying tort exists; example involved assault/battery)
- Eicher v. Mid America Fin. Invest. Corp., 275 Neb. 462 (Neb. 2008) (civil conspiracy premised on fraudulent misrepresentation where underlying tort was pled)
- Green Mountain Realty v. Fifth Estate Tower, 161 N.H. 78 (N.H. 2010) (Noerr–Pennington applied to state consumer-protection claims modeled on federal law)