Salem Grain Co. v. Consolidated Grain & Barge Co.
297 Neb. 682
| Neb. | 2017Background
- Salem Grain (a local grain elevator operator) sued Consolidated Grain & Barge (CGB) and several private individuals (members of Falls City economic development bodies) alleging they conspired to secure special economic benefits for CGB by concealing municipal actions (annexation, rezoning, blight designation, TIF bonds, grants), violating Nebraska Open Meetings Act (NOMA) and Nebraska Consumer Protection Act (NCPA), causing Salem economic losses.
- Defendants moved to dismiss under Neb. Ct. R. Pldg. § 6-1112(b)(6); some defendants asserted Noerr–Pennington (petitioning) immunity. The district court dismissed Salem’s complaint with prejudice as futile, holding defendants immune under Noerr–Pennington and that conspiracy/aiding-and-abetting claims require an underlying tort.
- Salem appealed, arguing Noerr–Pennington is limited to antitrust claims, that a conspiracy exception should apply, and that conspiracy/aiding claims can stand independent of an underlying tort.
- The Nebraska Supreme Court reviewed de novo, examined statutory construction of the NCPA (statutorily tied to federal antitrust/FTCA language), and analyzed First Amendment petitioning immunity doctrine.
- The Court affirmed dismissal: NCPA claims are barred by Noerr–Pennington immunity (NCPA construed like federal antitrust/FTCA and aimed at business, not political activity); no conspiracy exception applies to NCPA-based claims; conspiracy and aiding-and-abetting require an underlying tort beyond mere statutory violations; Salem conceded amendment would be futile.
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 Sherman Act antitrust claims; NCPA (modeled on FTCA) is broader and not covered | Noerr–Pennington protects petitioning of government; NCPA must be construed consistently with federal antitrust/FTCA and thus is subject to immunity; First Amendment petition right supports immunity | Held: Immunity applies; NCPA claims barred by Noerr–Pennington because NCPA is an antitrust-style statute tailored for business, not political activity |
| Whether a “conspiracy” exception negates Noerr–Pennington here | A conspiracy exception should apply when public officials conspire with private actors to obtain unlawful advantages | Supreme Court has rejected a conspiracy exception to Noerr–Pennington for antitrust-based claims; doctrine applies despite alleged unlawful means | Held: No conspiracy exception applies to Salem’s NCPA-based theory; Omni controls |
| Whether conspiracy and aiding-and-abetting claims can stand without an underlying tort | Such claims are independently actionable based on wrongful assistance or concerted wrongful conduct (including statutory violations) | Conspiracy/aiding-and-abetting are methods to impose joint liability and require an underlying tort; statutory violations alone are insufficient | Held: Claims require an underlying actionable tort beyond mere statutory violations; Salem failed to plead one |
| Whether dismissal with prejudice and denial of amendment/jury demand were improper | Salem argued the complaint states claims and should be allowed to amend / pursue jury trial | Defendants argued claims fail as a matter of law and Salem conceded amendment would be futile | Held: Dismissal with prejudice affirmed; Salem conceded futility so no relief on amendment/jury demand |
Key Cases Cited
- Eastern R. Conf. v. Noerr Motors, 365 U.S. 127 (1961) (establishes petitioning immunity from antitrust liability under First Amendment/statutory interpretation)
- Mine Workers v. Pennington, 381 U.S. 657 (1965) (extends Noerr immunity to lobbying executive agencies)
- Columbia v. Omni Outdoor Advertising, Inc., 499 U.S. 365 (1991) (recognizes sham exception but rejects broad conspiracy exception to Noerr in antitrust context)
- ACI Worldwide Corp. v. Baldwin Hackett & Meeks, 296 Neb. 818 (2017) (Nebraska decision discussing Noerr–Pennington as an affirmative defense and its application)
- Green Mountain Realty v. Fifth Estate Tower, 161 N.H. 78 (2010) (applies petitioning immunity to state consumer-protection claims where statute mirrors federal FTCA language)