Salem Grain Co. v. Consolidated Grain & Barge Co.
297 Neb. 682
| Neb. | 2017Background
- Salem Grain Company operated a grain elevator in Richardson County, Nebraska and alleged economic injury after Consolidated Grain & Barge Co. (CGB) opened a competing facility following city economic-development actions.
- Salem sued CGB and several private individuals (members/officers of local development entities) alleging they conspired to secure special public incentives for CGB by violating the Open Meetings Act and thereby committed unfair competition under Nebraska’s Consumer Protection Act (NCPA).
- Salem asserted claims under NCPA (Neb. Rev. Stat. §§ 59-1602, 59-1603), and common-law claims for civil conspiracy and aiding-and-abetting, seeking damages for lost profits and storage revenue.
- Defendants moved to dismiss under Neb. Ct. R. Pldg. § 6-1112(b)(6), asserting (inter alia) immunity under the Noerr–Pennington doctrine; some raised additional statutory immunity defenses.
- The district court dismissed the complaint with prejudice, holding defendants immune from NCPA claims under Noerr–Pennington and that conspiracy/aiding-and-abetting claims require an underlying tort (not mere statutory violations). Salem appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Noerr–Pennington immunity bars Salem’s NCPA claims | Noerr–Pennington is limited to antitrust claims; NCPA is modeled on FTCA and is broader, so immunity shouldn’t apply | Noerr–Pennington protects petitioning activity beyond Sherman Act; NCPA is construed with federal antitrust law and First Amendment petition protections apply | Held: Noerr–Pennington applies; defendants immune from NCPA claims because NCPA is an antitrust-style statute and petitioning the government is protected |
| Whether a “conspiracy” exception to Noerr–Pennington applies where public officials allegedly conspire with private actors | Salem: adopt a conspiracy exception when public actors join private conspirators | Defs: Supreme Court rejected a conspiracy exception in antitrust context; only narrow sham exception exists | Held: No conspiracy exception applies to NCPA-based antitrust claims; Omni bars such an exception here |
| Whether civil conspiracy and aiding-and-abetting are actionable without an underlying tort (e.g., based solely on statutory violations) | Salem: aiding/abetting and conspiracy are independent wrongs that can be actionable without separate tort | Defs: Those claims are vehicles to impose joint liability and require an underlying tortious act; statutory violation alone insufficient | Held: Claims require an underlying tort; statutory violations alone do not support conspiracy or aiding-and-abetting claims |
| Whether dismissal with prejudice and denial of leave to amend was proper | Salem: dismissal and denial of amendment was error | Defs: Dismissal proper because of immunity and failure to plead an underlying tort; amendment would be futile | 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 (U.S. 1961) (petitioning government to influence public officials is immune from Sherman Act liability)
- United Mine Workers v. Pennington, 381 U.S. 657 (U.S. 1965) (Noerr immunity extends to efforts aimed at executive agencies)
- Columbia v. Omni Outdoor Advertising, Inc., 499 U.S. 365 (U.S. 1991) (limits on Noerr: recognizes sham exception and rejects a broad conspiracy exception in antitrust context)
- ACI Worldwide Corp. v. Baldwin Hackett & Meeks, 296 Neb. 818 (Neb. 2017) (Noerr–Pennington is an affirmative defense; discussion of its application in Nebraska)
- Green Mountain Realty v. Fifth Estate Tower, 13 A.3d 123 (N.H. 2010) (applying Noerr principles to state consumer-protection claims when statute mirrors federal law)