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 facility in Falls City after receiving local economic incentives.
- Salem sued CGB and several local private actors (members of EDGE, CRA, CARB) in their individual capacities, alleging they conspired to secure special privileges for CGB by withholding notices, violating the Open Meetings Act (NOMA), and otherwise harming Salem’s business.
- Salem pleaded violations of Nebraska’s Consumer Protection Act (NCPA) (§§ 59-1602, 59-1603) and causes of action for civil conspiracy and aiding & abetting, claiming lost profits and storage revenue.
- Defendants moved to dismiss under Neb. Ct. R. Pldg. § 6-1112(b)(6), asserting Noerr–Pennington immunity (and other immunities) and arguing Salem failed to plead an underlying tort for conspiracy/aiding-and-abetting claims.
- The district court dismissed the complaint with prejudice, holding defendants immune under Noerr–Pennington for the NCPA claims and that conspiracy/aiding claims require an underlying tort; Salem appealed but 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 not to NCPA claims modeled on the FTCA; thus immunity should not apply | Petitioning the government is protected by Noerr–Pennington and the First Amendment; NCPA mirrors federal antitrust/FTCA language and must be construed consistently, so immunity applies | Held: Noerr–Pennington applies and bars Salem’s NCPA claims; NCPA construed as an antitrust-style statute and not designed for the political arena |
| Whether a “conspiracy” exception to Noerr–Pennington applies when public officials allegedly conspired with private actors | Salem urged adoption of a conspiracy exception where political actors conspire with private parties to obtain unlawful advantages | Defendants: Supreme Court rejected a conspiracy exception in the antitrust context; the right to petition and statutory interpretation support immunity | Held: No conspiracy exception applies to NCPA-based claims grounded in antitrust interpretation; Omni bars such an exception here |
| Whether Salem’s conspiracy and aiding-and-abetting claims stand without an underlying tort | Salem contended aiding/abetting and conspiracy should be actionable based on wrongful/statutory conduct (NCPA/NOMA violations) alone | Defendants argued these claims require an underlying tortious act; statutory violations alone are insufficient | Held: Conspiracy and aiding-and-abetting require an underlying tort (not merely statutory violations); Salem failed to plead such a tort |
| Whether dismissal with prejudice and denial of leave to amend was proper | Salem argued dismissal was improper and challenged denial of amendment/jury demand | Defendants argued the pleadings failed as a matter of law and amendment would be futile (Salem conceded futility in reply) | Held: Dismissal with prejudice affirmed because claims fail as a matter of law and Salem conceded amendment futile |
Key Cases Cited
- Eastern R. Conf. v. Noerr Motors, 365 U.S. 127 (U.S. 1961) (establishes that petitioning government activity is immune from antitrust liability and grounds Noerr–Pennington)
- Mine Workers v. Pennington, 381 U.S. 657 (U.S. 1965) (extends Noerr protection to lobbying of executive agencies)
- Columbia v. Omni Outdoor Advertising, Inc., 499 U.S. 365 (U.S. 1991) (refines Noerr–Pennington and rejects a broad conspiracy exception; recognizes the sham exception)
- ACI Worldwide Corp. v. Baldwin Hackett & Meeks, 296 Neb. 818 (Neb. 2017) (Nebraska court recognition that Noerr–Pennington is an affirmative defense and its application beyond pure antitrust contexts)