Salem Grain Co. v. Consolidated Grain & Barge Co.
297 Neb. 682
| Neb. | 2017Background
- Salem Grain Company operated a grain warehouse in Richardson County and alleged financial harm after Consolidated Grain & Barge Co. (CGB) opened a competing facility in Falls City.
- Salem sued CGB and several private individuals (members of local economic development bodies) alleging they conspired to secure special economic benefits for CGB by concealing city actions (annexation, rezoning, blight designation, TIF bonds, grants) and violating Nebraska’s Open Meetings Act (NOMA).
- Salem pleaded violations of Nebraska’s Consumer Protection Act (NCPA) and asserted 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), raising the Noerr–Pennington doctrine as immunity and arguing conspiracy/aiding claims require an underlying tort.
- The district court dismissed the complaint with prejudice, holding defendants immune under Noerr–Pennington for Salem’s NCPA claims 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 applies to Salem’s NCPA claims | Salem: Noerr–Pennington is limited to antitrust; NCPA (modeled on FTCA) addresses consumer protection and is broader; if doctrine applies, a conspiracy exception should exist where public officials conspire | Defendants: Noerr–Pennington extends beyond federal antitrust to state antitrust/consumer statutes and is grounded in First Amendment petition rights; no conspiracy exception for NCPA claims; sham exception not pleaded | Held: Noerr–Pennington applies to NCPA claims here; immunity bars Salem’s NCPA claims and conspiracy exception does not apply because Salem’s theory rests on antitrust-style statutory interpretation |
| Whether the “conspiracy” exception to Noerr–Pennington applies when public officials allegedly participate | Salem: Conspiracy exception should defeat immunity when politicians act as conspirators with private actors | Defendants: Supreme Court has rejected a broad conspiracy exception for antitrust-based claims; extension would undermine petition rights | Held: No conspiracy exception available for claims predicated on antitrust/consumer-protection statutes; immunity stands |
| Whether civil conspiracy and aiding-and-abetting claims are actionable without an underlying tort | Salem: Conspiracy/aiding liability can stand based on wrongful conduct or statutory violations alone | Defendants: Those claims require an underlying tortious act to impose joint liability | Held: Civil conspiracy and aiding/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: Complaint sufficient or should be allowed to amend | Defendants: Claims fail as a matter of law; amendment would be futile | Held: Dismissal with prejudice affirmed because NCPA claims are barred by immunity and conspiracy/aiding claims lack a pleaded underlying tort; Salem conceded amendment would be futile |
Key Cases Cited
- Eastern R.R. Conference v. Noerr Motors, 365 U.S. 127 (doctrine shielding petitioning of government from antitrust liability)
- Mine Workers v. Pennington, 381 U.S. 657 (Noerr extension to efforts directed at executive agencies)
- Omni Outdoor Advertising, Inc. v. Columbia, 499 U.S. 365 (limits on conspiracy exception; sham exception recognized)
- ACI Worldwide Corp. v. Baldwin Hackett & Meeks, 296 Neb. 818 (Nebraska discussion recognizing Noerr–Pennington as affirmative defense and its extension beyond pure antitrust context)
- Bergman v. Anderson, 226 Neb. 333 (aiding/abetting addressed—underlying tort was assault/battery in that case)
- Eicher v. Mid America Fin. Invest. Corp., 275 Neb. 462 (civil conspiracy liability where defendants committed a fraudulent misrepresentation)
- State ex rel. Douglas v. Associated Grocers, 214 Neb. 79 (NCPA construed in accordance with federal antitrust law)