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 market harm after Consolidated Grain & Barge Co. (CGB) opened a competing facility in Falls City.
- Salem sued CGB and several private individuals (members/officers of local economic development bodies) in their individual capacities, alleging they conspired to secure special economic benefits for CGB by concealing governmental actions and violating Nebraska’s Open Meetings Act (NOMA).
- Salem asserted violations of Nebraska’s Consumer Protection Act (NCPA) (§§ 59-1602, 59-1603) and claims for civil conspiracy and aiding-and-abetting, seeking damages from the private actors.
- Defendants moved to dismiss under Neb. Ct. R. Pldg. § 6-1112(b)(6), raising the Noerr–Pennington/First Amendment petition immunity and other immunities; some defendants explicitly invoked Noerr–Pennington in their motions.
- The district court dismissed Salem’s complaint with prejudice, holding defendants were immune under Noerr–Pennington as applied to the NCPA and that conspiracy/aiding claims require an underlying tort; Salem appealed but conceded amendment would be futile.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does Noerr–Pennington immunity bar Salem’s NCPA claims? | Noerr–Pennington is limited to antitrust claims; NCPA derives from FTCA and protects consumers, so immunity shouldn’t apply. | Noerr–Pennington and First Amendment petition rights extend to state consumer/antitrust-like claims; NCPA must be construed consistent with federal counterparts. | Applied Noerr–Pennington: defendants immune from NCPA claims. |
| Is there a "conspiracy" exception to Noerr–Pennington for alleged corrupt collusion with public officials? | Adopt a conspiracy exception when private actors conspire with politicians to obtain benefits by unlawful means. | Supreme Court rejected a conspiracy exception in the antitrust context; no exception applies where claim is predicated on antitrust/consumer-protection law. | No conspiracy exception applies to NCPA-based claims; immunity stands. |
| Do claims for civil conspiracy and aiding-and-abetting stand without an underlying tort? | Conspiracy/aiding claims can be actionable based on wrongful/statutory conduct themselves; no separate tort required. | Conspiracy/aiding are vehicles to impose joint liability for an underlying tort; statutory violations alone are insufficient. | Conspiracy and aiding-and-abetting require an underlying tort; statutory violations alone do not suffice. |
| Was dismissal with prejudice and denial of leave to amend appropriate? | Dismissal was erroneous; plaintiff should be allowed to amend and have a jury trial. | Salem conceded that amendment would be futile; dismissal proper where no viable claims pled. | Dismissal with prejudice affirmed; Salem conceded futility so leave to amend and jury issues not reached. |
Key Cases Cited
- Eastern R.R. Conference v. Noerr Motors, 365 U.S. 127 (immunity for petitioning government under Sherman Act and First Amendment rationale)
- United Mine Workers v. Pennington, 381 U.S. 657 (extension of Noerr immunity to influence of executive agencies)
- Columbia v. Omni Outdoor Advertising, Inc., 499 U.S. 365 (clarifies sham exception and rejects broad conspiracy exception in antitrust context)
- ACI Worldwide Corp. v. Baldwin Hackett & Meeks, 296 Neb. 818 (Nebraska recognition of Noerr–Pennington as an affirmative defense; discussion of its scope)
- Bergman v. Anderson, 226 Neb. 333 (aiding-and-abetting analysis noting underlying tort was assault/battery)
- Eicher v. Mid America Fin. Invest. Corp., 275 Neb. 462 (civil conspiracy where defendants committed a fraudulent misrepresentation tort)
- State ex rel. Douglas v. Associated Grocers, 214 Neb. 79 (construing Nebraska antitrust/consumer provisions consistent with federal law)