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 injury after Consolidated Grain & Barge Co. (CGB) opened a competing warehouse in Falls City.
- Salem sued CGB and several private individuals (members/officers of local economic development entities and city advisory boards), alleging they conspired to secure special public financial incentives and benefits for CGB while concealing those actions from Salem and the public.
- Salem asserted claims under Nebraska’s Consumer Protection Act (NCPA), Nebraska Open Meetings Act (NOMA), and common-law claims for civil conspiracy and aiding-and-abetting, alleging 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/abetting claims.
- The district court dismissed the complaint with prejudice, finding Noerr–Pennington barred the NCPA claims and that conspiracy/aiding-and-abetting require an underlying tort (statutory violations alone insufficient). Salem appealed; the Nebraska Supreme Court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does Noerr–Pennington immunity bar Salem’s NCPA claims? | Salem: Noerr–Pennington is limited to antitrust (Sherman Act) claims and should not apply to NCPA claims modeled on the FTC Act; alternatively, a conspiracy exception should apply when public officials conspire with private actors. | Defendants: Noerr–Pennington extends to state consumer/antitrust analogues and rests on First Amendment petition protections; no conspiracy exception applies to statutory antitrust-type claims; immunity was properly raised. | Held: Noerr–Pennington bars Salem’s NCPA claims; NCPA construed like federal antitrust/FTC law and is tailored to business, not political, activity; conspiracy exception not available for such statutory claims. |
| May defendants assert Noerr–Pennington in a Rule 12(b)(6) motion? | Salem: (implicit) challenge to the timing/application. | Defendants: Defense is affirmative but may be raised on a face-of-complaint basis when apparent from the pleadings. | Held: Noerr–Pennington is an affirmative defense but may be raised on Rule 12(b)(6) when it appears on the complaint’s face; defendants provided sufficient notice. |
| Is there a conspiracy or aiding-and-abetting claim absent an underlying tort? | Salem: Prior Nebraska cases support liability for those who aid wrongdoing even if they did not commit the underlying act; statutory violations (NCPA/NOMA) suffice. | Defendants: Conspiracy/abetting require an underlying tort; statutory violations alone do not create an independent tort for these claims. | Held: Conspiracy and aiding-and-abetting are not independent torts; they require a pleaded underlying tort (statutory violations alone insufficient). |
| Was dismissal with prejudice and denial of leave to amend proper? | Salem: Argued dismissal and denial of amendment/jury demand were erroneous. | Defendants: Pleading deficiencies were incurable because immunity barred the core statutory claim and no underlying tort was pled. | Held: Salem conceded amendment would be futile; dismissal with prejudice and denial of leave to amend affirmed. |
Key Cases Cited
- Eastern R.R. Conference v. Noerr Motors, 365 U.S. 127 (1961) (establishes petitioning immunity from antitrust liability based on First Amendment petition right)
- United Mine Workers v. Pennington, 381 U.S. 657 (1965) (extends Noerr immunity to efforts to influence executive agencies)
- Columbia v. Omni Outdoor Advertising, Inc., 499 U.S. 365 (1991) (refines Noerr–Pennington; recognizes sham exception and rejects a broad conspiracy exception in antitrust context)
- ACI Worldwide Corp. v. Baldwin Hackett & Meeks, 296 Neb. 818 (Neb. 2017) (Nebraska case recognizing Noerr–Pennington as affirmative defense and discussing its scope)
- Bergman v. Anderson, 226 Neb. 333 (1987) (illustrative Nebraska decision applying aiding-and-abetting principles where an underlying tort—assault/battery—was pled)
- Eicher v. Mid America Financial Investment Corp., 275 Neb. 462 (2008) (civil conspiracy can attach where defendants committed an underlying tort such as fraudulent misrepresentation)