Salem Grain Co. v. Consolidated Grain & Barge Co., 297 Neb. 682

Background

Salem Grain Company operated a grain elevator in Richardson County, Nebraska; Consolidated Grain & Barge Co. (CGB) opened a competing warehouse in Falls City after receiving economic development incentives.
Salem sued CGB and several local individuals (members of EDGE, CRA, CARB) alleging they conspired to secure special benefits for CGB by concealing public processes, violating Nebraska’s Open Meetings Act (NOMA) and the Nebraska Consumer Protection Act (NCPA), causing Salem economic losses.
Salem pleaded claims under the NCPA and causes of action 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 immunity (petitioning the government), and argued conspiracy/aiding claims require an underlying tort.
The district court dismissed the complaint with prejudice, finding Noerr–Pennington immunity barred Salem’s NCPA claims and that conspiracy/aiding claims demanded an underlying tort; Salem appealed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Noerr–Pennington immunity bars Salem's NCPA claims	Noerr–Pennington applies only to antitrust (Sherman Act) claims; NCPA (modeled on FTCA) is broader and not immune; alternatively, a conspiracy exception should apply when public officials are involved	Noerr–Pennington extends to state consumer/antitrust-like claims and is grounded in the First Amendment right to petition; no conspiracy exception applies to antitrust-style claims; "sham" exception not pleaded	Court held Noerr–Pennington bars Salem's NCPA claims because NCPA is construed with federal antitrust/FTCA principles and its theory is antitrust in nature; conspiracy exception inapplicable
Whether defendants gave adequate notice of invoking Noerr–Pennington in a § 6-1112(b)(6) motion	(implicit) Salem contended dismissal was improper where some defendants did not explicitly raise Noerr–Pennington	Defendants who raised it provided fair notice; affirmative defenses may be resolved on a 12(b)(6)-type motion if apparent on face of complaint	Court held Noerr–Pennington was sufficiently raised and fairly noticed; applied immunity to all appellees (no plain error)
Whether civil conspiracy and aiding-and-abetting are actionable without an underlying tort	Salem argued aiding/abetting and conspiracy are independently actionable based on wrongful conduct/statutory violations alone	Defendants argued those claims require an underlying tort; statutory violations alone are insufficient	Court held both claims require an underlying actionable tort (not merely statutory violations like NCPA/NOMA); Salem failed to plead such a tort
Whether dismissal should be with prejudice and amendment denied	Salem requested leave to amend/jury demand; argued pleading defects could be cured	Defendants argued amendment would be futile given immunity and lack of underlying tort	Court affirmed dismissal with prejudice, finding amendment futile (Salem conceded amendment would be futile)

Key Cases Cited

Eastern R.R. Conf. v. Noerr Motors, 365 U.S. 127 (Noerr–Pennington immunity for petitioning government)
United Mine Workers v. Pennington, 381 U.S. 657 (extension of Noerr immunity to lobbying/executive branch petitions)
Omni Outdoor Advertising, Inc. v. Columbia, 499 U.S. 365 (limits: recognizes sham exception; rejects a broad conspiracy exception in antitrust context)
ACI Worldwide Corp. v. Baldwin Hackett & Meeks, 296 Neb. 818 (Nebraska discussion: Noerr–Pennington is an affirmative defense; application beyond federal antitrust context considered)
Green Mountain Realty v. Fifth Estate Tower, 161 A.3d 123 (N.H. 2010) (Noerr–Pennington applied to state consumer-protection statute analogous to FTCA)
Rodgers v. F.T.C., 492 F.2d 228 (9th Cir. 1974) (FTCA claims were subject to Noerr analysis; political campaign/initiative activity immune)