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 warehouse in Falls City after seeking local economic incentives.
- Salem sued CGB and several private individuals (members of local entities EDGE, CRA, CARB) in their individual capacities, alleging they conspired to obtain special privileges for CGB by violating Nebraska’s Open Meetings Act and withholding notice, causing Salem anticompetitive harm and lost profits.
- Salem pleaded claims under Nebraska’s Consumer Protection Act (NCPA) and causes of action for civil conspiracy and aiding-and-abetting.
- Defendants moved to dismiss under Neb. Ct. R. Pldg. § 6-1112(b)(6), asserting Noerr-Pennington immunity (and other immunities) and arguing conspiracy/aiding claims require an underlying tort.
- The district court dismissed the complaint with prejudice, finding NCPA claims barred by Noerr-Pennington and that conspiracy/aiding claims lacked an underlying tort; 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 applies only to antitrust claims (Sherman Act); NCPA modeled on FTCA and is broader; conspiracy exception should apply when public actors conspire with private parties | Noerr-Pennington extends to state consumer/antitrust statutes; NCPA is construed consistent with federal antitrust/FTCA and First Amendment petitioning immunity applies; no conspiracy exception to bar | Held: Noerr-Pennington bars Salem’s NCPA claims; NCPA construed as an antitrust-style statute and immunity applies; no conspiracy exception in this context |
| Whether the “conspiracy” exception to Noerr-Pennington applies | Salem urged adoption of a conspiracy exception when public officials participate | Defendants relied on Supreme Court precedent rejecting a conspiracy exception for antitrust-based claims | Held: No conspiracy exception applies because Salem’s theory is antitrust/statutory in nature rather than a pure First Amendment claim |
| Whether civil conspiracy and aiding-and-abetting are actionable without an underlying tort | Salem argued aiding/abetting and conspiracy are independent wrongs that can be actionable based on statutory violations alone | Defendants argued those claims require an underlying tort; statutory violations alone are insufficient | Held: Claims for conspiracy and aiding-and-abetting require an underlying tort; statutory violations alone do not suffice |
| Whether dismissal with prejudice and denial of leave to amend was appropriate | Salem contended dismissal was premature and should allow amendment | Defendants argued pleadings could not be cured because of immunity and lack of underlying tort; amendment would be futile | Held: Dismissal with prejudice affirmed because NCPA claims are immune and Salem conceded amendment would be futile |
Key Cases Cited
- Eastern R.R. Conf. v. Noerr Motors, 365 U.S. 127 (establishes petitioning immunity from antitrust liability)
- United Mine Workers v. Pennington, 381 U.S. 657 (extends Noerr immunity to lobbying executive agencies)
- Omni Outdoor Advertising, Inc. v. Columbia, 499 U.S. 365 (clarifies limits: recognizes sham exception but rejects broad conspiracy exception in antitrust context)
- ACI Worldwide Corp. v. Baldwin Hackett & Meeks, 296 Neb. 818 (Nebraska case discussing Noerr-Pennington as an affirmative defense and its application to nonantitrust contexts)