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 warehouse in Falls City after receiving municipal incentives.
- Salem sued CGB and several private individuals (members of Falls City economic development bodies) alleging they conspired to obtain special economic privileges for CGB by violating the Nebraska Open Meetings Act and thereby injuring Salem under the Nebraska Consumer Protection Act (NCPA).
- Salem asserted damages from lost profits and storage revenue after CGB’s market entry (2013–2015).
- Defendants moved to dismiss under Neb. Ct. R. Pldg. § 6-1112(b)(6), raising immunity under the Noerr–Pennington doctrine; the district court dismissed the complaint with prejudice as futile.
- On appeal, the Nebraska Supreme Court reviewed statutory interpretation and the pleadings de novo and affirmed dismissal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Noerr–Pennington immunity bars Salem's NCPA claims | Noerr–Pennington is limited to antitrust claims (Sherman Act) and should not shield NCPA claims modeled on the FTC Act; alternatively, a conspiracy exception should apply when private parties conspire with public officials | Noerr–Pennington extends to state consumer/antitrust-styled claims and is grounded in the First Amendment; no conspiracy exception applies to statutory antitrust-style claims; defendants raised the defense in motions | Held: Noerr–Pennington bars Salem’s NCPA claims; NCPA interpreted like federal antitrust/FTCA, so immunity applies; the conspiracy exception does not apply to antitrust-style claims |
| Whether a conspiracy exception to Noerr–Pennington applies (for corrupt or unlawful petitioning) | A conspiracy exception should permit claims where private actors and public officials conspired unlawfully | No such exception exists for antitrust-style claims; Supreme Court has rejected broad conspiracy exception | Held: No conspiracy exception applies to NCPA-based claims; immunity stands |
| Whether claims of aiding and abetting and civil conspiracy are viable without an underlying tort | Salem contends aiding/abetting and conspiracy are independently actionable based on statutory violations (NCPA, NOMA) and withholding information | Defendants: conspiracy/aiding require an underlying tortious act; statutory violations alone are insufficient | Held: Aiding/abetting and civil conspiracy require an underlying actionable tort; statutory violations alone do not suffice |
| Whether dismissal with prejudice and denial of leave to amend was proper | Salem argued dismissal premature and amendment should be allowed | Defendants argued immunity and failure to plead underlying torts make amendment futile | Held: Dismissal with prejudice affirmed because claims are legally barred and Salem conceded amendment would be futile |
Key Cases Cited
- Eastern R.R. Conference v. Noerr Motors, 365 U.S. 127 (U.S. 1961) (petitioning government for favorable action is immune from antitrust liability)
- United Mine Workers v. Pennington, 381 U.S. 657 (U.S. 1965) (Noerr immunity extends to efforts to influence executive agencies and reinforces petition-clause basis)
- Omni Outdoor Advertising, Inc. v. Columbia, 499 U.S. 365 (U.S. 1991) (reiterated Noerr immunity and recognized the sham exception; rejected a broad conspiracy exception in antitrust context)
- ACI Worldwide Corp. v. Baldwin Hackett & Meeks, 296 Neb. 818 (Neb. 2017) (Noerr–Pennington is an affirmative defense; discussion of its application beyond federal antitrust claims)
- State ex rel. Douglas v. Associated Grocers, 214 Neb. 79 (Neb. 1983) (Nebraska characterized its consumer/antitrust statute relative to federal law)
- Bergman v. Anderson, 226 Neb. 333 (Neb. 1987) (aiding and abetting liability depends on an underlying tortious act)
- Eicher v. Mid America Fin. Invest. Corp., 275 Neb. 462 (Neb. 2008) (civil conspiracy can rest on an underlying tort such as fraudulent misrepresentation)