Salem Grain Co. v. Consolidated Grain & Barge Co.
297 Neb. 682
| Neb. | 2017Background
- Salem Grain Company operated a grain elevator in Richardson County and alleged economic harm after Consolidated Grain & Barge Co. (CGB) opened a competing facility in Falls City following local economic-development actions.
- Salem sued CGB and several private individuals (members/officers of EDGE, CRA, CARB) in their individual capacities, alleging they conspired to conceal meetings, rezoning, annexation, blight determinations, tax-increment financing, bonds, and grants — violating Nebraska’s Open Meetings Act (NOMA) and the Nebraska Consumer Protection Act (NCPA).
- Salem claimed lost profits and storage revenue from competitive disadvantage caused by the alleged misconduct and sought relief under NCPA plus conspiracy and aiding-and-abetting theories.
- Defendants moved to dismiss under Neb. Ct. R. Pldg. § 6-1112(b)(6), raising Noerr–Pennington immunity and other immunities; some defendants explicitly asserted Noerr–Pennington in their motions.
- The district court dismissed the complaint with prejudice, holding defendants immune under Noerr–Pennington as applied to the NCPA and that conspiracy/aiding-and-abetting claims require an underlying tort (not merely 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 limited to antitrust (Sherman Act) claims and thus does not bar NCPA claims modeled on the FTCA; alternatively, a conspiracy exception should apply when public officials conspire with private actors | Noerr–Pennington extends to state consumer/antitrust-style statutes and protects petitioning activity; no conspiracy exception applies to antitrust-based claims; First Amendment foundation supports broad immunity | Held: Noerr–Pennington applies to Salem’s NCPA claims; immunity bars those claims and the conspiracy exception does not apply when the theory is antitrust/statutory in nature |
| Whether a conspiracy or aiding-and-abetting claim can stand absent an underlying tort | Conspiracy/aiding-and-abetting are independent wrongs and actionable based on defendants’ assistance in wrongful conduct or statutory violations | Such claims are derivative and require an underlying actionable tort (not merely statutory violation) | Held: Conspiracy and aiding-and-abetting require an underlying tort; statutory violations alone are insufficient |
| Whether defendants adequately raised Noerr–Pennington in dismissal motions | Salem argued some defendants did not timely raise the defense | Defendants (some) did raise it; court found fair notice and applied doctrine to all similarly situated defendants; no plain error | Held: Noerr–Pennington was sufficiently raised and applied to all appellees |
| Whether dismissal with prejudice and denial of leave to amend was appropriate | Salem argued dismissal was premature and amendment should be allowed | Defendants argued claims fail as a matter of law and amendment would be futile (Salem conceded futility in reply) | Held: Dismissal with prejudice affirmed; Salem conceded amendment would be futile |
Key Cases Cited
- Eastern R.R. Conference 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 to lobbying executive agencies; Noerr shields concerted efforts to influence public officials)
- Omni Outdoor Advertising, Inc. v. Columbia, 499 U.S. 365 (1991) (refines Noerr; recognizes sham exception and rejects a conspiracy exception in antitrust context)
- ACI Worldwide Corp. v. Baldwin Hackett & Meeks, 296 Neb. 818 (2017) (Nebraska recognition that Noerr–Pennington is an affirmative defense and its application beyond pure Sherman Act contexts)
- Bergman v. Anderson, 226 Neb. 333 (1987) (aiding-and-abetting/similar concerted-action claims depend on an underlying tort)
- Eicher v. Mid America Fin. Invest. Corp., 275 Neb. 462 (2008) (civil conspiracy may be based on underlying tort such as fraudulent misrepresentation)
- State ex rel. Douglas v. Associated Grocers, 214 Neb. 79 (1983) (construed state antitrust provisions consistent with federal law)