Salem Grain Co. v. Consolidated Grain & Barge Co.
297 Neb. 682
| Neb. | 2017Background
- Salem Grain operated a grain elevator in Richardson County, Nebraska; Consolidated Grain & Barge Co. (CGB) opened a competing facility in Falls City after seeking local economic-development incentives.
- Salem sued CGB and several local private individuals (members/officers of EDGE, the CRA, CARB, and planning boards) alleging they conspired to obtain special benefits for CGB by concealing public actions (annexation, rezoning, blight designation, tax-increment financing, grants) and violating the Open Meetings Act, causing Salem anticompetitive injury.
- Salem pleaded causes under Nebraska’s Consumer Protection Act (NCPA), and claims for civil conspiracy and aiding and abetting; it sought damages for lost profits and storage revenue.
- Defendants moved to dismiss under Neb. Ct. R. Pldg. § 6-1112(b)(6), asserting Noerr-Pennington and other immunities; the district court dismissed the complaint with prejudice as pleading no viable claim and futile to amend.
- On appeal, the Nebraska Supreme Court reviewed de novo, finding (1) Noerr-Pennington immunity barred Salem’s NCPA claims and (2) conspiracy and aiding-and-abetting claims required an underlying tort (not merely statutory violations), so Salem failed to state a claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Noerr-Pennington immunity bars NCPA claims | Salem: Noerr-Pennington is limited to antitrust; NCPA mirrors FTCA and protects consumers, so doctrine shouldn't bar NCPA claims | Defs: Noerr-Pennington protects petitioning activity beyond Sherman Act; NCPA must be construed consistent with federal antitrust law and First Amendment petitioning supports immunity | Held: Immunity applies; NCPA is tailored for business (like federal laws) and Noerr-Pennington bars Salem’s NCPA claims |
| Whether a "conspiracy" exception to Noerr-Pennington applies | Salem: Should adopt a conspiracy exception where public officials conspire with private actors to shield from immunity | Defs: Supreme Court rejected a conspiracy exception for antitrust-based claims; no exception applies here | Held: No conspiracy exception applies to claims predicated on antitrust/statutory interpretation; Omni prohibits such an exception in this context |
| Whether civil conspiracy and aiding-and-abetting claims require an underlying tort | Salem: These doctrines can be independently actionable based on wrongful conduct or statutory violations | Defs: Such claims impose joint liability only where an underlying tort exists | Held: Conspiracy and aiding/abetting require an underlying tort; statutory violations alone are insufficient |
| Whether dismissal with prejudice was appropriate / leave to amend | Salem: Complaint adequate or could be amended | Defs: Claims fail as a matter of law; amendment would be futile | Held: Dismissal with prejudice affirmed; Salem conceded amendment would be futile in reply brief |
Key Cases Cited
- Eastern R. Conf. v. Noerr Motors, 365 U.S. 127 (doctrine shielding petitioning the government from antitrust liability)
- Mine Workers v. Pennington, 381 U.S. 657 (extension of Noerr to executive-agency lobbying)
- Columbia v. Omni Outdoor Advertising, Inc., 499 U.S. 365 (limits on conspiracy exception; "sham" exception acknowledged)
- FTC v. Superior Court Trial Lawyers Ass’n, 493 U.S. 411 (Noerr considered with the Petition Clause in mind)
- ACI Worldwide Corp. v. Baldwin Hackett & Meeks, 296 Neb. 818 (Nebraska case discussing Noerr-Pennington as an affirmative defense)
- Green Mountain Realty v. Fifth Estate Tower, 161 N.H. 78 (applying Noerr-Pennington to a state consumer protection statute)