Salem Grain Co. v. Consolidated Grain & Barge Co.
297 Neb. 682
| Neb. | 2017Background
- Salem Grain Company operates grain warehouses in southeast Nebraska; Consolidated Grain & Barge Co. (CGB) opened a competing warehouse in Falls City in 2012.
- Salem sued CGB and several local private individuals (members/directors of EDGE, CRA, CARB) alleging they conspired to secure special economic benefits for CGB by concealing municipal actions and violating Nebraska’s Open Meetings Act, causing Salem anticompetitive harm.
- Claims: violations of the Nebraska Consumer Protection Act (NCPA §§59-1602, 59-1603), civil conspiracy, and aiding-and-abetting; prayed for damages.
- Defendants moved to dismiss under Neb. Ct. R. Pldg. §6-1112(b)(6), asserting Noerr–Pennington (petitioning immunity) and other immunities; some defendants expressly raised Noerr–Pennington in their motions.
- District court dismissed the complaint with prejudice, concluding (1) Noerr–Pennington bars Salem’s NCPA claims, and (2) conspiracy and aiding-and-abetting require an underlying tort (not merely statutory violations). Salem appealed and the Nebraska Supreme Court affirmed.
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) and does not apply to the NCPA (modeled partly on FTCA); if doctrine applies, a conspiracy exception should exist when public officials conspire with private actors | Noerr–Pennington extends to state consumer/antitrust-type statutes and is grounded in First Amendment petition rights; no conspiracy exception applies to statutory antitrust/consumer-protection claims; defendants asserted immunity | Held: Noerr–Pennington applies to Salem’s NCPA claims; NCPA construed like federal antitrust/FTCA; conspiracy exception not available for such statutory claims, so NCPA claims barred by immunity. |
| Whether the "conspiracy" exception to Noerr–Pennington applies | Salem urged adoption of a conspiracy exception when public actors participate | Defendants relied on Supreme Court precedent rejecting a broad conspiracy exception in antitrust/analogous statutory contexts | Held: Noerr–Pennington’s conspiracy exception is unavailable where claim is predicated on antitrust/consumer-protection statutes; Salem’s theory is statutory, so no exception applies. |
| Whether civil conspiracy and aiding-and-abetting are actionable without an underlying tort | Salem argued those doctrines impose liability for wrongful assistance even absent an independently actionable tort | Defendants argued conspiracy and aiding-and-abetting require an underlying tort; statutory violations alone are insufficient | Held: Civil conspiracy and aiding-and-abetting require an underlying tort; statutory violations alone do not sustain those claims; Salem pleaded no such tort. |
| Whether dismissal with prejudice and denial of leave to amend were proper | Salem contended amendment should be allowed | Defendants argued dismissal warranted because immunity and failure to plead underlying tort made amendment futile | Held: Dismissal with prejudice affirmed — Salem conceded amendment would be futile; court need not reach other immunity arguments. |
Key Cases Cited
- Eastern R. Conf. v. Noerr Motors, 365 U.S. 127 (1961) (establishes petitioning immunity from antitrust liability)
- United Mine Workers v. Pennington, 381 U.S. 657 (1965) (extends Noerr immunity to efforts to influence executive agencies)
- Columbia v. Omni Outdoor Advertising, Inc., 499 U.S. 365 (1991) (refines Noerr–Pennington, recognizes sham exception, rejects broad conspiracy exception in antitrust context)
- ACI Worldwide Corp. v. Baldwin Hackett & Meeks, 296 Neb. 818 (Neb. 2017) (discusses Noerr–Pennington as an affirmative defense and its invocation in Nebraska practice)
- Bergman v. Anderson, 226 Neb. 333 (Neb. 1987) (aiding-and-abetting requires underlying actionable conduct; underlying assault/battery sustained the conspiracy/aiding theories in that case)