Salem Grain Co. v. Consolidated Grain & Barge Co.
297 Neb. 682
| Neb. | 2017Background
- Salem Grain operated a grain elevator in Richardson County; Consolidated Grain & Barge (CGB) opened a competing facility after receiving economic incentives from Falls City.
- Salem sued CGB and several local private actors (members of EDGE, CRA, CARB) alleging they conspired to obtain special privileges for CGB by concealing actions from the public and violating the Open Meetings Act, causing Salem anticompetitive harm and monetary losses.
- Salem pleaded violations of Nebraska’s Consumer Protection Act (NCPA) and claims for civil conspiracy and aiding and abetting.
- Defendants moved to dismiss under Neb. Ct. R. Pldg. § 6-1112(b)(6), asserting Noerr–Pennington immunity (and other immunity theories) and arguing Salem failed to plead an underlying tort.
- The district court dismissed the complaint with prejudice, concluding Noerr–Pennington barred the NCPA claims and conspiracy/aiding claims required an underlying tort; the Nebraska Supreme Court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether defendants are immune from Salem’s NCPA claims under Noerr–Pennington | Noerr–Pennington is limited to antitrust; NCPA derives partly from the FTCA and is broader, so immunity should not apply | Noerr–Pennington shields petitioning activity beyond Sherman Act; NCPA must be construed like federal antitrust law and First Amendment petition rights support immunity | Defendants immune under Noerr–Pennington; NCPA is tailored to business/antitrust and immunity applies |
| Whether a "conspiracy" exception defeats Noerr–Pennington here | Adopt a conspiracy exception where private actors conspire with public officials to injure competitors | Conspiracy exception to Noerr–Pennington has been rejected in antitrust context; Omni controls and bars such an exception for antitrust-like claims | No conspiracy exception applies because Salem’s theory is antitrust/NCPA-based rather than purely First Amendment-based |
| Whether claims for civil conspiracy and aiding & abetting are actionable absent an underlying tort | Salem: aiding/abetting and conspiracy liability attaches for wrongful/statutory conduct alleged (NCPA/NOMA violations) | Defendants: those claims require an underlying actionable tort (not a mere statutory violation) | Court: conspiracy and aiding/abetting require an underlying tort; statutory violations alone are insufficient |
| Whether dismissal with prejudice and denial of leave to amend was appropriate | Salem argued dismissal was wrongful and sought leave to amend | Defendants argued pleading defects could not be cured; Noerr–Pennington immunity fatal to NCPA claims | Salem conceded amendment would be futile; dismissal with prejudice affirmed |
Key Cases Cited
- Eastern R.R. Conference v. Noerr Motors, 365 U.S. 127 (Noerr–Pennington doctrine protects petitioning conduct from antitrust liability)
- Mine Workers v. Pennington, 381 U.S. 657 (extended Noerr immunity to lobbying the executive branch)
- Columbia v. Omni Outdoor Advertising, Inc., 499 U.S. 365 (Noerr–Pennington limits: recognized sham exception; rejected broad "conspiracy" exception in antitrust context)
- ACI Worldwide Corp. v. Baldwin Hackett & Meeks, 296 Neb. 818 (Nebraska recognition and discussion of Noerr–Pennington as an affirmative defense in state proceedings)