Cardtoons, L.C., an Oklahoma Limited Liability Company v. Major League Baseball Players Association, an Unincorporated Association

Bands Tribes and Confederated Nation, Indian Yakima (1989). must treaty provision Thus, we conclude the one issue than explicit more excise from federal tribe

exempt an Indian

taxes.

IV. court- is of the district judgment

AFFIRMED. L.C.,

CARDTOONS, an Oklahoma Liability Company,

Limited Appellant,

Plaintiff - PLAY BASEBALL LEAGUE

MAJOR unincorporat ASSOCIATION, an

ERS Appellee. association,

ed Defendant -

No. 98-5061. Appeals, Court of States

United

Tenth Circuit. 7, 2000.

April doctrine or under the to petition clause of the First purely

Amendment. Because threats do not constitute a government, we they hold that are not constitutionally protected.

Background The facts are undisputed. In Cardtoons, (“Cardtoons”), L.C. an Okla- homa liability company, limited steps took produce parody trading baseball cards which contained the images major league players. baseball After the cards designed, were Cardtoons contracted with Champs Marketing, (“Champs”), Inc. an corporation, print Ohio the cards for a fee. set

Major League Players Baseball Associa- (“MLBPA”) tion is the exclusive collective bargaining agent major for all active league players responsible baseball and is enforcing the publicity rights of the 18,1993 players. In a June letter to Card- (“Cardtoons letter”), toons the MLBPA claimed that producing selling cards, “violat[ing] Cardtoons was the valu- property rights able of MLBPA and the players.” I R. at 8. The MLBPA threat- “pursue ened its full remedies to (and Tilly Craig James Fitzgerald, W. A. enforce if rights” its Cardtoons did not briefs), Tilly Fitzgerald, with him on the & immediately production cease of the cards. Tulsa, Oklahoma, Appellant. for Plaintiff — Id. (and Jones, Russell S. Jr. E. William date, the same On the MLBPA also sent Quirk, P.C., Shughart, Kilroy, Thomson & a similar cease and Champs desist letter to City, Missouri, Kansas and James W. (the letter). It is this letter that Jones, Givens, Weger, Bogan, Gotcher & present controversy. is the source of the Tulsa, Oklahoma, briefs), him on the pertinent part, it stated: Appellee. Defendant — you We understand that and are have SEYMOUR, Before Judge, Chief process printing drawings color TACHA, BALDOCK, EBEL, BRORBY, Major of active League players baseball KELLY, HENRY, BRISCOE, LUCERO, trading baseball cards for individuals MURPHY, Judges. Circuit associated with Cardtoons. This is to notify you that we believe that the activ- KELLY, Jr.,

PAUL Judge.. Circuit those ities of individuals violate the valu- requires This case us to determine able property publicity of litigation pure- players whether threats between MLBPA and the themselves. Further, ly private in a parties setting by printing non-antitrust we believe that liability trading are immunized from request under baseball cards at the appeal, determining on court affirmed Cardtoons, participating you are important “an form of en the cards were activities. illegal Cardtoons’ commentary and social tertainment you im- request that Accordingly, we protection.” First Amendment deserve printing and desist-the mediately cease Cardtoons, Major League L.C. Baseball Major trading cards active of baseball (10th Ass’n, Cir. Players request at the players League baseball (“Cardtoons ”). 1996) II not au- who are or others of Cardtoons of active likeness to use the thorized court returned to the district Cardtoons players. Major League baseball damages against claims the pursue its from, immediately you If not hear I do MLBPA. The court allowed Cardtoons you agree will confirming that claims complaint its and assert new amend have no alternative but will request, tort, prima negligence. libel and for facie action to enforce the necessary take all claims stemmed from the All of Cardtoons’ and MLBPA players the Champs contained in the letter. allegations rights. their infringement of against t the The district cour concluded that letter, receiving the Upon 10A. Id. liability MLBPA was immune from under in- Cardtoons Champs informed en Noerr-Pennington doctrine and the cards. printing the stop tended to judgment on summary for MLBPA tered filed suit Cardtoons June On Cardtoons, L.C. all of Cardtoons’ claims. declaratory seeking a court federal district Ass’n, Players Major League Baseball v. violate its cards did not judgment 1998) (N.D.Okla. Mar. No. 93-C-576-E seeking and also publicity rights MLBPA’s (“Cardtoons III”). inter- alleged tortious on damages based (cid:127) upheld appeal, panel of this court On contract. the ference judgment. Card summary grant of sub- to dismiss lack moved MLBPA toons, Major League v. Baseball L.C. counter- and filed jurisdiction ject matter (10th Ass’n, Cir. Players 182 F.3d 1132 injunctive declaratory and seeking claims IV”). 1999) (“Cardtoons major panel violation of relief, damages for well as as Noerr-Pennington that the ity determined The court bifurcated rights. publicity its from apart its roots applies doctrine to first resolve Cardtoons’ proceedings immu determining whether antitrust. In finding that declaratory judgment request, appropri writing the letters was nity for upon dependent were damages issues on the two ate, majority focused panel cards. parody legality Real test enunciated part Professional initially adopted court The district Investors, Pic Inc. v. Columbia Estate magistrate judge’s recommendations tures, MLBPA. Card favor of the ruled in (1993) (“PRE”). 123 L.Ed.2d toons, League Baseball Major v. L.C. majority held Ass’n, panel In part, critical Players F.Supp. Noerr-Pennington covered (N.D.Okla.1993). However, following the as the -litigation as well actual threats Campbell decision Supreme Court’s adopt Music, Inc., “We itself. Acuff-Rose that have informed other (1994), policy rationales 127 L.Ed.2d Noerr-Pennington parody circuits’ extension concluded that district court threats, hold prelitigation under protected cards were whether, they are consummat- or the court va Accordingly, Amendment. ed, enjoy same level such judg entered threats initial decision and cated its liability litigation itself.” Card ment favor of Cardtoons. See IV, pan- 182 F.3d at 1137. The toons, Major League Baseball Cardtoons L.C. on to hold that Ass’n, majority el went F.Supp. Players (“Cardtoons I”). to threaten (N.D.Okla.1994) probable cause This MLBPA had Champs, satisfy- thus applicability first address the of Noerr- the lawsuit Pennington outside the antitrust context.1 “Accordingly, PRE test. ing the enjoyed Noerr-Pennington Champs letter publicity Noerr involved an extensive litigation.” threat of immunity as a Card- campaign by industry the railroad aimed IV, F.3d at 1139. toons changing place state law to various re- trucking long-distance strictions on dissent, Judge questioned Ebel freight trucking industry business. The whether antitrust, brought alleging suit in viola- purely to cover should be extended §§ tions of the Sherman Act. apply two-part Rather than threats. The Court held that the railroads were designed litigation, Judge PRE test immune from suit because “the Sherman espoused part a three test for threats Ebel apply Act not does to the activities of the party seeking A litigation. Noerr-Pen- railroads at least insofar as those activities immunity nington must show comprised governmen- mere solicitation of (1) (2) faith; made in good threat was was respect passage tal action with to the and (3) reasonable; objectively and awas Noerr, enforcement of laws.” at U.S. to actual “proximate prologue or imminent 138, 81 S.Ct. 523.2 IV, Cardtoons litigation.” immunity upon This was based two (Ebel, J., dissenting). grounds. City See Lafayette v. Louisi- banc, sought rehearing en ar- Cardtoons Co., 389, 399, Light ana Power & 435 U.S. panel guing majority misapplied that the (1978) (not- 1123, 98 S.Ct. 55 L.Ed.2d 364 doctrine, and the ing principles” the “two correlative on governed solely by case should established); which Noerr was First Amendment petition. see also Transport Motor Co. v. California it particular, pointed to the decisions Unlimited, Trucking 404 U.S. Smith, 479, v. 472 U.S. McDonald (1972). 609, S.Ct. 30 L.Ed.2d 642 The first 2787, (1985) 86 L.Ed.2d S.Ct. statutory interpretation was of the Sher- City City, Martin v. Del 179 F.3d 882 man Act. (10th Cir.1999) contrary panel as to the To government hold that the retains the opinion. granted We en rehearing banc. power representative to act capaci- [a] below, For the reasons stated we reverse hold, time, ty yet at the same panel and remand. the people freely gov- cannot inform the ernment impute of their wishes would I. Noerr-Pennington Immunity purpose regulate, the Sherman Act a not activity, political business but activi- The Noerr-Pennington doctrine was ty, a purpose which would have no basis recognized first in two antitrust cases: legislative history whatever R.R. Eastern Presidents Conference that Act. Freight, Noerr Motor 365 U.S. Noerr, (1961) 365 U.S. at The S.Ct. 523. S.Ct. 5 L.Ed.2d 464 second predicated basis United Mine Pennington, Workers v. on the petition. First Amendment U.S. 14 L.Ed.2d 626 (1965). present The case Secondly, equal does involve and of at signifi- least claims, therefore, cance, antitrust we must such a construction of the Sher- 1. Court was Pennington This faced with the issue but did extended this Quark, Harley, not decide it in Inc. v. Nos. 96- the executive and California 1046, 96-1048, 96-1061, Unlimited, Transport Trucking WL Motor Co. v. (10th Cir.1998) (unpublished *7 order and 30 L.Ed.2d 642 (1972), judgment) ("Assuming, deciding, without further extended doctrine to cover courts, beyond this circuit extend the would doctrine the third branch of litigation....”) government. the realm of antitrust (granting First important constitu- raise Act man .would boycott nonviolent business immunity to a questions. tional equal economic and seeking to vindicate by the protected freedoms of the one PRE, 59, 113 508 U.S. at rights). also course, cannot, of we Rights, and Bill of has “in- (noting that the Court S.Ct. an intent to Congress impute to lightly in other contexts” and has ] Noerr vok[ed these freedoms. invade analogy”). But see “by referenced has 523. The Court Id. at Advertising, Outdoor Omni “[i]nter- prongs two to these referred (granting Noerr immu- 111 S.Ct. 1344 light Act in the preting the Sherman permit- claims but antitrust nity to federal Clause.” Petition Amendment’s law “trade liability under state libel” ting Superior Ct. Trade Comm’n Federal on the same under- and other based claims Ass’n, 424, 110 Law. Trial conduct). lying (1990). 768, 107 L.Ed.2d suit, have followed eliminat The circuits Noerr- applying logical dilemma Act ing the rationale outside Sherman con- of the antitrust Pennington outside focusing solely peti on the antitrust and im- first rationale that Noerr’s text is instance, the Third Cir tion clause. For of the Sherman interpretation munity —an We, City Philadelphia, cuit pre- Supreme Court present. Act—is not (3d Cir.1999) stated: F.3d 326-27 174 resolving guidance us scant gives cedent courts, has court, with other along “This All of the cases which this issue. Noerr-Penning- analogy extended the applied has Noerr-Pen- Supreme Court to citizens’ to offer ton doctrine involved immunity as such have nington in contexts outside activities petitioning PRE, e.g. 508 U.S. claims. See antitrust pur as well.... [T]he area antitrust 1920; City Columbia 113 S.Ct. applied in Noerr-Pennington as pose of Advertising, U.S. 499 Omni Outdoor pro field is the the antitrust areas outside right petition.” to Fifth tection of the Ass’n, 493 (1991); Trial Law. Superior Ct. “[ajlthough noted Circuit has 768; Tube & 422, 110 S.Ct. Allied U.S. at initially Noerr-Pennington doctrine arose Inc., Head, Indian Corp. v. Conduit field, have circuits antitrust other 100 L.Ed.2d amendment protect to first expanded it (1988); Pennington, 381 U.S. from claims government ” Noerr, 1585; 365 U.S. state laws.... federal and brought S.Ct. under Production, Inc. Wamer- Int’l S.Ct. 523. Video Communications, Amex Cable pre- extent that To the (5th Cir.1988).3 1075, 1084 F.2d to extend Noerr-Pen- cedent can be read context, it of the antitrust nington outside question do not While we right to solely on the basis of the does so outside right to application of Restaurants, See Bill Johnson’s to petition. a bit of a misnomer antitrust, it is NLRB, Noerr-Pennington doc Inc. v. refer to (1983) (immun- trine; 76 L.Ed.2d was based on two a which doctrine view, appro in- it more law suit from NLRB In our izing employer’s rationales. immunity as Noerr-Pen petition); to to right priate under to refer junction applied to Hardware, immunity only when nington v. Claiborne NAACP contexts, In all other antitrust claims.4 886, 913-14, L.Ed.2d right petition and there- to First Gary, Amendment Aaron R. also implicating applied all to claims fore must be Immunity In Tort Suits: Clause Petition claims.”). just antitrust Framework, right, not a Consistent Doctrinal Search of (1996) (“Innumerable L.Rev. Idaho good example of need 4. Bill state courts have Johnson’s concluded federal based antitrust cases distinguish between Noerr-Pennington is rooted in the doctrine one, including present such reasonably normally attendant upon the right petition. derives from effective litigation. litigator should protected only when he strikes completely distinction is not aca- This warning. litigation good without If is in grant Antitrust cases that Noerr- demic. faith, immunity do Pennington upon sincerity so based a token of that ais warn- both the Act and the Sherman ing that it will be commenced and a petition. precedents, These founded possible compromise effort to the dis- part upon construction the Sherman pute. Act, completely interchangeable are not Id. solely upon based cases petition. If we were to refer to based The Fifth Circuit antitrust decision solely on the as Noerr- Hunt, Marketing, Coastal States Pennington immunity, very it would be (5th Cir.1983) 694 F.2d 1358 is a classic tempting to apply Coastal States in the example of the difficulties which can arise so, however, present case. To do would be if this distinction is not made. MLBPA First, inappropriate. Coastal States re- heavily upon propo- relies this case for the jected to petition as a basis for sition that Noerr. “Noerr was based on construc- prelitigation extends to threats of suit. tion of the Sherman Act. It was not first States, plaintiff argued Coastal States, amendment decision.” Coastal defendants’ threats to litigate could not be (footnote omitted). F.2d at 1364-65 Sec- immunized under “[B]ecause Noerr. ond, instructive, and even more the Fifth are not directed to a specifically Circuit noted that its use of the they government, do not fall within the “petitioning immunity” term beyond went petitioning immunity.” rationale of Coast- guarantees petition clause. “We States, al 694 F.2d at 1367. The Fifth reject the notion that rejected immunity argument. Circuit only extends far so as the first amendment petitioning immunity Given that protects petition to joint right and then litigation, abruptly.” it would ends be absurd to that protect hold it does not those acts Id. at 1366. upon prongs Noerr-Pennington the two upon simple showing objective based solely right Johnson's, non-antitrust cases based on the objec- reasonableness. Under Bill petition. to The dissent characterizes Bill enough tive reasonableness is not and a court application Johnson’s as a direct Pennington. of Noerr- plaintiff must further determine whether However, such a characteriza- bringing violated the law in the suit. The tion would lead to a direct conflict between only way to reconcile these cases is to limit Bill Johnson's and Investors, Real Estate Professional they them to the contexts which arose. Pictures, Inc., Inc. v. Columbia case; PRE is an antitrust Bill Johnson's is (PRE), not. (1993). Noerr-Pennington im- important This distinction is two rea- munity, as defined in all of the Noerr antitrust First, against describing sons. it cautions Bill cases, liability. line of from application Noerr-Penning- Johnson’s as an

PRE, antitrust, the context held that a ton rather than Petition Clause im- liability lawsuit is immune from unless it is a Second, munity. importantly, and more (i.e. objectively sham unreasonable or reason- that demonstrates PRE must be limited to the faith). brought able but in bad U.S. context, antitrust context. Outside of However, 113 S.Ct. 1920. in Bill John- protects objectively Petition Clause reason- son’s, Supreme specifically Court de- being clared, enjoined, able lawsuits from but re- dispute, in the context of an NLRA quires underlying a court to look at the stat- employer brought that an who a non-sham liable, ute to determine though suit could still be held whether the initiator of the even Therefore, right petition protected being given to the suit suit can be from held liable. enjoined. case, U.S. at 103 S.Ct. 2161. non-antitrust context of this the dissent’s II, apparent. inapposite. The reliance on conflict is Under the PRE PRE Part C is standard, plaintiff liability is immune from Attorney of United but was position to States grant of States’ Coastal appointed. brought not He libel suit was not based on threats prelitigation who claimed that against petitioner, therefore, and, does petition right to gave him absolute immu- right petition to present non- decision inform our president. to nity his statements not to intimate case.5 This is antitrust disagreed. Court never principles can right petition to accept petitioner’s claim of absolute To anti- from be drawn immunity would elevate the Petition Rather, merely pre- it is trust eases. sta- special to First Amendment Clause to avoid cautionary designed distinction however, Clause, tus. The Petition from principles drawing constitutional inspired by liberty the same ideals of statutory upon con- propositions founded democracy gave us the free- struction. speak, publish, to and assemble. doms in- These First Amendment are Right II. to Petition is no separable, and there sound basis whether must now determine We pro- constitutional granting greater solely threats prelitigation communicated petition to made in a tection statements im are afforded private parties between than to the President other right petition to munity suit expressions. We by the First Amendment. guaranteed McDonald, U.S. they are not. hold that (citations omitted). The affirmed states: “Con The First Amendment in allowing courts the libel action the lower ... respecting make no law gress shall right petition guar- “The to proceed. petition ... people right of anteed; commit libel grievances.” for a redress Government City not.” also Del impunity is Id.See implicit ‘[t]he “is petition (holding F.3d at 889 City, 179 republican in very government, idea absolute, and in state em- is not petition ” Smith, 472 McDonald v. form.’ context, employee must demon- ployment 2787, 86 L.Ed.2d 384 for which he was fired strate that States v. Cruik (quoting United concern). public involved matter of shank, 542, 552, 23 L.Ed. 588 being sued for If MLBPA were (1876)). “Certainly litigation in a made libelous statements departments to all of the Govern extends court, document filed with the McDonald is right of access to the courts ment. clearly allow the libel suit to contin would peti right of the aspect indeed but one ue as a matter of constitutional law. Com Motor, at tion.” California (Second) § of Torts pare Restatement 609; City City, Del see also (“A (1977) ... private litigation to a party F.3d at 887. absolutely privileged' publish to defama However, petition to right another in commu tory concerning matter liability. judicial preliminary proposed not an absolute to a nications McDonald, to dur petitioner wrote a letter or in the institution of or proceeding, of, part judicial Reagan accusing respondent ing the course and as President extortion, fraud, blackmail, if the proceeding participates, and the viola in which he proceed relation to the rights. individuals’ civil matter has some tion of various Likewise, made in a ing.”). statements being considered for the Respondent immunity, specifically Oil Co. v. 5. The same is true of McGuire Inc., (11th Cir.1992), litigation under an protected the threats of Mapco, F.2d 1552 Act. See upon interpretation the Sherman antitrust case which relied Coastal an Oil, (holding that McGuire 958 F.2d at 1560 granting to threats of liti- States in "threats, than the actual initiation of gation. Although Circuit men- no less the Eleventh Act”). litigation, the Sherman right basis for do not violate tioned the to as one (11th Inc., F.2d 1552 Mapco, litigation are not abso- Co. threatening letter Co., CVD, Cir.1992); Raytheon Inc. v. petition clause of by the lutely protected (1st Cir.1985); States subject are to F.2d 842 Coastal First Amendment (5th Hunt, law and 694 F.2d 1358 Mktg., common principles of state Cir.1983). distinguish- are These cases statutory law. state First, that “the merely held able. CVD However, context of even in the unfounded secrets threat of trade claims, it is clear non-libel Cardtoons to constitute a faith is bad sufficient grant does not petition simply to laws, action the antitrust cause of under plain immunity from suit. The MLBPA essential elements provided that other protects language of the First F.2d at proven.” a violation are are made to petitions which only those MLBPA that agree We do not noted Judge As Ebel Government.”6 “the thereby good implied the First Circuit panel opinion: dissent to the his Noerr- by are faith threats immunized to letter The MLBPA’s cease-and-desist Pennington. never sent Champs threatening suit was Second, importantly, all four most gov- government; did not ask to context. As cases arise the antitrust “redress of any response or ernment earlier, Coastal States discussed both known to the grievances”; was not even prelitiga- grant McGuire Oil declara- to Cardtoons’ government prior tion threats under construction action tory judgment Act, petition. Sherman MLBPA; any result in not ever did Dev. nor CVD even Equip. Neither Glass litigation. Although petition. mention the TV, at 1141. A letter 182 F.Sd Cardtoons treat appear to Equip. Glass Dev. does another private party to from one infringement “actual or threatened both simply implicate does not party purposes of Noerr- suits” the same for letter of what the petition, regardless Pennington immunity, 174 F.3d cited text threatens. Even the antitrust three reject it, as the other we as well that “a mere panel majority do nothing “had plaintiff ations with the (NFPA), voluntary organization private, a government.”). National Electrical publishes which every years, “Revised three of Code. the decisions MLBPA asserts electrical code the most influential contrary. See Code is other are to the circuits number of Besten, nation. A Dev., 174 in the substantial Equip. Glass routinely governments (Fed.Cir.1999); state and local McGuire Oil F.3d 1337 acknowledge Tube is an anti- Allied plain lan- 7. We address this 6. The dissent does not concept upon applying and are guage, case but instead trust relies private “breathing space,” distinguish prop- interest of between careful to therefore legal rights, parties vindicating their solely Sherman Act grounded on the ositions arguing that public policy arguments in such peti- grounded in the also those constitutionally pro- private threats should tion. tected. collapses little or no into law with into the issue antitrust liabili- adopt the Code 509,108 ty.” 1931. Id. at S.Ct. 1931. S.Ct. change.” 486 be approved in the Code could Changes present in many case is similar the members majority vote of simple respects. MLBPA communicated with meeting. annual present at the NFPA’s Champs order to further its own busi- amending the Code Respondent proposed ness interests. Its efforts were successful chloride conduit as an polyvinyl to include print parody when refused to electrical conduit. Peti- approved type of brought alleging cards. Cardtoons suit tioner, largest producer of the Nation’s various violations of the law based upon conduit, that such approval steel feared MLBPA’s action. MLBPA raised Noerr- harm its It recruited over would business. hold, Pennington as a defense. We meeting attend the NFPA people Tube, paraphrase Allied that because proposal. Poly- the new and vote petition government there was no rejected by a vinyl chloride conduit was case, present of immunity issue votes, brought respondent mere four collapses into the issue of state law liabili- Act. alleging suit violation of the Sherman ty.8 argued Petitioner was immune many persuasive policy While there are Noerr-Pennington. arguments granting immunity from suit under favor of case, “In the re- disagreed. private litigation, threats of these do not liability which language straint of trade on override the clear of the First exclusion predicated arguments was the Association’s Amendment. Such are best Code, respondent’s product legislative from addressed to the state bodies damages imposed accordingly. and no were for the which can craft state law incorporation by any govern- e.g. Gary, supra (noting of that Code note at 73-77 Tube, typically Allied 486 U.S. at 108 that state common law ment.” shields litigation activity certain defamation suits). and tortious interference place actions took petitioner’s Here summary, we hold that when the within the context of the standard-set- petition, basis for is the ting process association. purely private are not Having concluded that the Association is “quasi-legislative” body, reject protected we because there is no ad- not a government. to the any efforts to dressed petitioner’s argument influence the Association must be treat- REMANDED. REVERSED and “quasi-legis- efforts to influence a ed as given lature” and the same wide berth LUCERO, Judge, with whom Circuit legislative lobbying. accorded BRISCOE, Judges, BRORBY and Circuit join, dissenting. Id. at 108 S.Ct. 1931. The Court majority’s with the specifically agree prop- noted that communications cannot private organization protects with a “did not take osition that the First Amendment arena, place open political property rights where an owner of intellectual partisanship adversary is the hallmark of decision- who blindsides an with a lawsuit making.” claiming infringement rights, Id. at 108 S.Ct. 1931. of those but government, fails to shield that same owner when Without letter immunity issue of this ease thus more civilized notice demand “[t]he passing reprisals, allegedly cer- 8. We also note in that an almost threats of frustrated arrangements that identical claim to raised in this case was tain which Continental had presented Molybdenum Corporation in Continental Ore Co. v. Union with the Climax for 690, 695, ferrovanadium.”). Corp., Carbide & Carbon 370 U.S. 82 the manufacture of Noerr (1962) (plaintiffs immunity by 8 L.Ed.2d 777 S.Ct. was discussed the Court but 1943, by open regard claimed that not mentioned in to this claim. "[d]efendants 894 way, scope there is nature and of the the Put another in advance.

sent right the conclusion that a affords. for no sound basis immunity while afforded complaint will be A not, letter when will a “cease-and-desist” allega- contain identical documents both provided Supreme The has some Court majority’s ruling encourages, tions. application to of the guidance as the demands, litigation; requires more nay right petition developing to in cases the bypass the owners to property intellectual original- As Noerr-Pennington doctrine. way to the court house post office on the Court, ly by articulated get in a rush to the letter carrier and avoid provides gen- doctrine process to the server. liability un- eral from antitrust parties Act to der Sherman reality of Today’s ignores decision redress petition government who law, in which the en- property intellectual anti- grievances, notwithstanding the of rights, and thus forcement of consequences competitive purpose or of is cus- litigation process, invocation of R.R. Eastern Presi- petitions. their tomarily by a cease-and-desist commenced Freight, Noerr dents Motor Conference Consequently, practical result letter. 135-38, 5 365 U.S. to majority’s holding will be force of the (1961) (establishing immuni- wrongful seeking prevent to parties legislature); a state ty petitions to property of intellectual infringement their v. Pen- see also United Mine Workers with lawsuits infringers to rights ambush 657, 670, nington, 85 381 U.S. S.Ct. retaliatory having or risk to defend (1965) (extending 14 L.Ed.2d 626 Noerr Noerr-Pennington, tort claims. officials). petitions public to to jurisprudence has come to be body of emphasized Noerr known, immunize from to applied has been right petition of is one of the free- “[t]he pe- objectively reasonable state tort claims Rights, Bill of protected doms In invoking the courts. titioning activity Congress lightly impute we cannot ... to inter- the First Amendment furtherance of an intent to these freedoms.” invade legal rights and est the vindication Noerr, 81 S.Ct. 523. requirement the constitutional Transport In Co. v. Motor breathing given California right petition be Unlimited, Trucking U.S. survive, im- the same necessary to space (1972), the Court S.Ct. 30 L.Ed.2d objectively munity be should afforded approach to “the extended allegations infringement reasonable ... groups or of them to courts.” citizens in cease-and- contained (holding, addi- Id. at desist letters. tion, of access “[t]he aspect of the courts is indeed but one Avery, (citing Johnson v. petition”) 483, 485, L.Ed.2d U.S. S.Ct. “the guarantees The First Amendment Hull, (1969); parte Ex ... people petition (1941)). L.Ed. grievances.” for a redress of Government conclusion, Const, the Court relied reaching this Although I. amend. Su U.S. underpin- primarily on the constitutional has preme Court declared nings of the doctrine: “among precious the most that it would be destructive Bill of We conclude safeguarded by the the liberties and of of association v. Illinois Rights,” United Mine Workers common interests Bar Ass’n, groups hold that State not, violating the antitrust (1967), may has without the Court 19 L.Ed.2d laws, procedures use the channels guidance as to the only provided limited Noerr, agencies and to in the purpose and federal courts was to vindicate state points important causes and of view Fourteenth rights. advocate their Amendment 914-15, resolution of their business See id. at 3409. respecting following year, vis-a-vis their again applied and economic interests the Court Noerr-Pennington doctrine competitors. outside of the antitrust context. In Bill Johnson’s Res 609; 510-11, City 92 S.Ct. see also Id. taurants, NLRB, 731, 734, Inc. 461 U.S. Co., Light Lafayette v. Louisiana Power & 2161, (1983), 103 S.Ct. 76 L.Ed.2d 277 a 399 n. restauranteur a seeking filed civil suit to (1978) (noting that “[c]ases L.Ed.2d enjoin employees picketing his res Pennington empha to have subsequent employees by taurant. The responded fil possible infirmity sized the constitutional ing complaint with the National Labor contrary in the antitrust laws that a con alleging Relations Board the civil suit was light in struction would entail of the seri retaliatory in action violation of Na threat First Amendment ous to freedoms (“NLRA”), tional Labor Act Relations (cita presented”) that would have been 158(a)(1) (4). § U.S.C. & id. at See 734- omitted). applying tions When the Noerr- 35, 103 question S.Ct. 2161. The before con Pennington doctrine the antitrust whether, Supreme Court was under text, placed empha this Circuit has similar NLRA, enjoin the Board could the civil sis on the First Amendment against suit employees. See id. at See, designed protect. e.g., doctrine is to 740-43,103 S.Ct. 2161. Based on the Renh-A-Car, Inc., Zimomra v. Alamo petition recognized Motor (10th Cir.1997); F.3d Instruc California Transport, as well as a line of cases hold Sys. Corp. tional Dev. v. Aetna Cas. & ing that the preempt NLRA does not state (10th Co., Sur. F.2d Cir. deeply civil remedies for conduct rooted 1987).9 concerns, local the Court held that Because of its foundation in the First enjoin Board could not law well-founded petition, Amendment suit. See id. applied Noerr-Pennington has In light of Claiborne Hardware and Bill doctrine, by analogy, outside of its aborig- Restaurants, Johnson’s there can little ine roots antitrust law. NAACP v. Noerr-Pennington immunity, doubt that Co., Claiborne Hardware amplified by Transport, Motor 73 L.Ed.2d 1215 California mandated First Amendment (1982), example, brought merchants right to petition, irrespective any inde- claims of common law malicious interfer- have, statutory pendent might basis also ence with business and violations of state “Noerr-Pennington immunity” has statutory labor and antitrust laws evolved into an umbrella term for First participants rights boycott. in a civil Com- petitioning immunity. paring by analogy those common law and Cf. Bellotti, First Nat’l Bank Boston v. statutory regulation claims the economic Noerr, n. at issue the Court concluded that U.S. nonviolent boycotting (citing activities were enti- L.Ed.2d 707 Mo- California protec- Transport proposi- tled similar First Amendment tor and Noerr for the major purpose boy- protects tions because “a of the tion that “the First Amendment cott ... governmental corporations petition legisla- was to influence action,” and, bodies”); petitioning activity unlike the tive and administrative NAACP Communications, reject I therefore the Fifth Circuit’s asser- Warner-Amex Cable (5th Cir.1988) tion that "was Noerr first amendment (holding 858 F.2d Hunt, Mktg., decision.” Coastal States Inc. v. purpose that the doc (5th Cir.1983). 1364-65 In- protect trine tois the First Amendment deed, the Fifth Circuit itself has taken incon- government). Prod., positions. sistent VideoInt’l

896 Prod., Int’l 858 Button, 415, antitrust.” Video such U.S. as v. 371 Therefore, I conclude Noerr’s at 1084. would 328, (citing 405 F.2d 9 L.Ed.2d of the rail from Card- Amendment that the MLBPA is shielded First sup solicitations governmental roads’ state tort claims insofar those toons’s Amend First proposition port petitioning from protected claims arise its associating litigation for protects also requires ment This conclusion activity.11 Supreme with purposes).10 Consistent questions: Does of further resolution two characterization of constitutional Court’s Champs petitioning letter constitute have doctrine, other courts numerous scope within the of the activity immunity, ei applied so, Amendment; and if to what extent by analogy, to shield de directly or ther protect MLBPA the Petition Clause does See, e.g., tort claims. from state fendants on the premised tort claims from state Ethyl Corp., v. 168 Drugs, Ltd. Cheminor letter? (3d Cir.1999); 119, Video Int’l F.3d 128-29 Prod., Cable Com Inc. v. Warner-Amex B Inc., 1075, munications, F.2d 1082-84 858 “peti- refers to First Amendment The Am., (5th Cir.1988); Ltd. v. Havoco of paradig- government.” tions (7th Hollobow, 643, F.2d 649-50 Cir. 702 complaint. courts matic to the petition 1983); Org. v. National Wom Missouri of Smith, 479, 484, v. McDonald 472 Cf. (8th Cir.1980); en, 1319 620 F.2d (“[F]iling 86 S.Ct. Lab., Inc., 472 Corp. v. Zenith Pennwalt complaint petitioning in court is a form of (E.D.Mich.1979), ap 423-24 F.Supp. case, however, At issue in this activity.”). (6th dismissed, F.2d 1362 Cir. peal letter between is a cease-and-desist Butz, 1980); F.Supp. Club v. Sierra intellectual alleging infringement of parties (N.D.Cal.1972); &Gas 934, 937-39 Pacific threatening a lawsuit. property rights Co., 50 Cal.3d v. & Elec. Co. Bear Stearns by the Peti- on the interests served Based 791 P.2d 595-98 Cal.Rptr. requirement that First tion Clause Env’t, (1990); Inc. Our Mountain Protect given “breathing rights be Court, 1361, 1364-69 677 P.2d v. District activity concept petitioning space,” banc). (Colo.1984)(en let- must such cease-and-desist embrace the Fifth Circuit agree ter. a com- no reason simply “[t]here not considered Court has any per- doctrine can more mon-law tort issue, suggested but has precise chill the constitutional missibly abridge or activities, immunity to statutory application claim the than can petition Cir.1999), (10th we City, petitioning im- application of isNor 10. political alleging government employee he munity to associational or that a limited held long activity. "[t]he held that The Court has was retaliation terminated right of of which grievances for redress grievances must show that redress of for the insured, and with it public con- touches on matters political solely religious assembly, or are not cern, public requirement is Martin's concern 516, 531, Collins, v. ones.” Thomas developed inapplicable here because was (1945); see also S.Ct. 89 L.Ed. interest light government's substantial Ass’n, 389 U.S. at State Bar Illinois workplace. maintaining an efficient that ‘‘the (rejecting S.Ct. 353 contention applica- principles in Button were announced Grip-Pak, Inc. Illinois Tool v. the extent To political purposes”) only ble (7th Works, Cir. F.2d 471-72 Virgi- (citing R.R. Trainmen Brotherhood of reject 1982), contrary, I would holds nia, L.Ed.2d holding We also note that of that case. (1964)). example, Bill Johnson’s For or panel of that overlooked circuit another Restaurants, 743, 103 U.S. at reaching a Grip-Pak ignored the decision individual to an the Court afforded own. See Havoco consistent with our result seeking private economic litigant to vindicate Am., Ltd., 702 F.2d at 649-50. City Del Although interests. in Martin incidental to tant litigation, laws of commerce. Cease-and-desist such as processes of would be frequently by the normal letters are used businesses Allied holdings. consistent with its See and individuals to protect and vindicate Head, v. Indian Corp. Tube & Conduit their intellectual property rights. 492, 1931, 508, U.S. generally B. Coolley, Ronald Notifications (1988)(holding L.Ed.2d 497 a “claim of Infringement and Their Consequences, of Noerr cannot be dismissed on Soc’y 246, 77 J. Pat. & Trademark Off. in- ground the conduct issue (1995) (describing suspected notification to govern- no ‘direct’ of petitioning volved property intellectual infringers a “com- as officials, Noerr immunized a ment itself holders). rights mon reaction” of While (citation petitioning”) form of ‘indirect’ the immediate of purpose cease-and-desist omitted); v. Continental Ore Union cf. may letters compensation psy- not be or 690, Corp., & Carbon Carbide benefit, chological Bill Johnson’s Res- cf. 707, 82 8 L.Ed.2d 777 taurants, 461 U.S. at Noerr the defen- (distinguishing because they nonetheless seek and fi- vindication “engaged dant the case at bar was nancial gain through sig- activity, private commercial no element nificant They economic interests. do so ... seeking procure which involved by law, demanding adherence to the laws”). significantly, enforcement of More every demand citizen has the to as- amendment interests involved “[t]he first Brownsville, sert. 839 F.2d at 160. Cf. private litigation” as articulated Bill although And this demand is made direct- Restaurants, Johnson’s U.S. ly, governmental rather than avia mecha- concept petitioning activity support nism, significance its and efficacy are de- includes incidental to litiga- actions rived creating from the existence of laws “compensa- tion. These interests include protecting intellectual property rights interests, rights tion for violated and the existence courts to enforce vindication, psychological benefits of [and] laws, those the brooding not threat of airing of facts.” public disputed Id. So Nothing force. could better demonstrate conceived, to petition the courts point than the fact that the notice of serves, in private litigation, the context of wrongdoing provided by Champs let- purpose vindicating legal rights. ter precedent condition to MLBPA way, inducing Put another conduct admin- bringing against Champs colorable claim judicial istrative and action protected “is contributory infringement publicity by firmly principle, rooted endemic to See, rights. e.g., Mooney, 124 Misut v. government, a democratic that enactment Misc.2d 475 N.Y.S.2d respon- of and adherence to the law is the (N.Y.Sup.Ct.1984); Maynard v. Port Pub- sibility Age of all.” Brownsville Golden lications, Inc., Wis.2d N.W.2d Home, Wells, Nursing (1980). sum, let- (3d Cir.1988) (applying petitioning ter a use of constitutes “the channels immunity to the defendant’s notification to procedures of state and federal ... courts government agencies and mobilization of to advocate [the author’s] causes and public concerning awareness violations of points respecting of view resolution of [its] home). nursing the law at a business and economic interests vis-a-vis threatening Cease-and-desist letters re- competitors.” [its] Motor California judicial course to process alleged if the Transport, 404 S.Ct. 609. infringement property intellectual continues, rights Applying petitioning immunity than to wide- complaints no less seeking ly-used infringement, enforcing legal rights redress for such an methods of promote precede any the interests by served direct communication They by compelled courts: vindicate with the courts is also rights promote impor- Supreme pronouncement adherence to Court’s not, law, a matter of lying suit “did require “breath fully York survive.- See New ‘sham’ and was constitute

ing space” Sullivan, amendment”). by Times Co. first protected (1964); But litigation activity Like the incidental That ton, 83 S.Ct. 328. U.S. at cited, just let- the cases cease-and-desist although applied, principle was infringe- notifying recipient ters R.R. name, in Trainmen Brotherhood of rights and property ment of intellectual 1, Bar, 84 S.Ct. Virginia State action, legal pro- “must also be threatening (1964). Rejecting the 89 12 L.Ed.2d is right if the of to the courts tected access enjoin a union effort to Bar Association’s Consortium, The significance.” to have to advising members obtain from injury Energy Exposition, claims and settling Inc. v. Knoxville Int’l counsel before attorneys, (E.D.Tenn.1983) the (citing them to selected referring F.Supp. 59 no more 413). State can “[t]he held that Court As Corp., F.Supp. at Pennwalt using coop from their these workers keep discussed, the first such letters are often it another than advise one plan erative to enforcing in of the step process formal the to bar more direct means them could use vindicating and of intellectual property law vindicate to the courts to from resorting Frequently step this economic interests. petition right The to legal rights. their a com- by filing followed of quickly is the handicapped.” Id. be so the courts cannot court, by rights be it plaint with 1113; Trans. see also United injunctive and relief or damages holder for Michigan, Bar Union v. State of declaratory judgment. recipient 585-86, 28 L.Ed.2d 339 what Coolley precisely at 246. That Ctr., (1971); Health Women’s Feminist Upon receiving occurred this case. (5th Mohammad, 530, 543 586 F.2d notice of the letter and Cardtoons Cir.1978). concept application of the letter, preempted the threat- Cardtoons peti to “breathing space” to of by an action for de- litigation filing ened limited to situations is not tion courts relief, responded claratory and MLBPA im to litigation incidental which actions By permitting liabili- with counterclaims. rights. See plicate associatio'nal Pacific allegations ty state common law under Elec., 791 P.2d Cal.Rptr. Gas & contained cease-and-desist and threats “breathing concept (applying 595-98 letters, liability for iden- prohibiting while reference to space” without associational filed allegations complaint made in tical that the reaching the conclusion rights in court, the cen- majority ignores with a premising tort prohibits Petition Clause play in letters cease-and-desist role tral. induc defendant’s conduct liability on the property the enforcement intellectual lawsuit); bring to a meritorious ing another resulting bright-line rule rights. City South v. Kansas South Dakota cf. ern the courts to chills the (8th Inc., Indus., Cir. 880 F.2d activity immediately prece- handicapping 1989) to associ (holding, without reference with, to, intimately associated dent as that the defendant’s rights, ational judicial process.12 It is under- recourse litigants assistance sumed private associ- product standard for a judi- lating a with the association 12. This immediate comprises participants," id. distinguishes Champs letter market ation process cial (citation n. activity Tube and at 511 at issue in Allied from the omitted), indicating quotations internal Corp., 486 U.S. at Conduit encompass, holding and there- would not held that efforts 1931. The in Allied immunity, efforts to preclude standard-setting process of fore influence standard-setting associ- private “all enjoy Noerr influence did not trade association repeated explicit Id. With such ations.” immunity. 108 S.Ct. 1931. See id. limitations, However, Court did not fore- it is clear the holding] to "expressly [its limited all indi- application party economically close interested cases where an activities, such as to non- decisionmaking authority rect in formu- exercises concept Org., tional Farmers a result just such (8th Cir.1982) practical may “breathing space,” (noting born there which reality environment in which situations threats exercised, is meant are competitor’s customers would be prevent. protected Noerr-Pennington). under Likewise, context, of the antitrust outside sustaining vitality In addition to courts have afforded immu federal district fur- the fundamental nity from state common law claims based intended the interests that thering pre-litigation to enforce on similar efforts serve, acknowledgment that Petition See, Elec. legal rights. e.g., Matsushita to cease-and-de- immunity applies Clause Corp., F.Supp. Corp. v. Loral the one before us is sist letters such as Cablevision, (S.D.N.Y.1997); Aircapital policy. As public consistent with sound observed, Group, this ac- Inc. Starlink Communications have commentators (D.Kan.1986); to resolve knowledgment F.Supp. facilitates efforts disputes litigation. resort is had to 472 at 424. Corp., F.Supp. before Pennwalt Hoven- Phillip E. Areeda & Herbert provide breathing space In order to (rev. § at kamp, Antitrust Law 205e 237 the First Amendment ed.1997) immu- (arguing withholding that courts, further the that interests communication nity prelitigation serve, promote public designed useful practices “provide would curb that resolution, dispute interest efficient con- and facilitate the resolution of notice courts and ac- would follow other federal troversies”); Hovenkamp, Feder- Herbert alleging in- cord cease-and-desist letters Policy § at 644 al Antitrust 18.3d fringement property of intellectual vital to (immunizing prelitigation threats is the same threatening legal recourse dispute process[, resolution entire “[o]ur liability a immunity level of from tort as designed encourage people which] is allegations. complaint making the same possible differences if before resolve their litigating”). a

Applying petitioning immunity to C cease-and-desist letter is novel. With not, course, That is of abso- context, in the antitrust numerous courts determining proper scope In lute. applied Noerr-Pennington have immunity for activities in- petition clause arising from cease-and-desist let to claims judicial process, the Noerr-Pen- voking ters, litigation, pre- and other again nington provides doctrine once See, e.g., litigation enforcement efforts. extensive, starting point. While broad and Dev., Besten, Inc., Inc. v. Equip. Glass not a Noerr-Pennington immunity is (Fed.Cir.1999); CVD, F.3d 1343-44 conduct, al- petitioner shield for a whose Co., Raytheon 850-51 influ- though “ostensibly directed toward (1st Cir.1985); Pipeline Corp. Miller action, is a mere encing governmental PLC, F.Supp.2d British Gas actually nothing sham to cover what (S.D.Ind.1999); PrimeTime Joint Ven directly an to interfere Co., Inc., attempt more than ture v. National Broad. relationships a com- (S.D.N.Y.1998); with the business F.Supp.2d Noerr, at Consortium, 59; petitor.” F.Supp. Outboard Pezetel, has established 523. The Corp. F.Supp. Marine (D.Del.1979); litigation: of sham two-part Alexander v. Na- definition cf. Allied, or, gov- govemmental no associations as in as issue involved 'direct' here, officials, to cease-and-desist letters. On the con- for Noerr itself immunized ernment discussed, trary, emphasized a the Court petitioning.” Id. at of ‘indirect’ form "claim of Noerr cannot be dis- omitted). (citation S.Ct. 1931 ground missed on the the conduct First, objectively establishing requirements lawsuit must be for the exception that no sham sense reasonable baseless doctrine, emphasized the Court realistically expect success litigant could Noerr as an applying “[w]hether antitrust objective litigant If an on the merits. contexts, invoking or it in other doctrine that the suit reason- could conclude repeatedly we have reaffirmed that evi- out- ably calculated to elicit favorable anti-competitive purpose dence of intent or come, is immunized under the suit legiti- cannot otherwise alone transform Noerr, premised an antitrust claim activity mate into a sham.” Only exception must fail. if on the sham Professional Estate, Real 508 U.S. at 113 S.Ct. 1920 objectively challenged litigation is merit- added). (emphasis example As an may litigant’s a court examine the less objective on emphasis reasonableness as subjective motivation. Under sec- petitioning immunity linchpin out- sham, our definition of part ond context, side the antitrust on whether the base- court should focus Professional Restau- Real Estate cites Bill Johnson’s in- attempt lawsuit conceals “an less rants, 461 U.S. at 103 S.Ct. 2161. In directly terfere with the business rela- case, filing the Court held “[t]he Noerr, tionships competitor,” prosecution may a well-founded lawsuit through enjoined practice, as an unfair not be labor governmental process [of] “use —as even if it would not have been commenced pro- opposed to the outcome of plaintiffs for the desire to retaliate but anti-competitive weapon,” an cess—as exercising rights the defendant for Advertising, v. Omni Outdoor Columbia protected by the Labor Rela- [National 1344, 499 U.S. S.Ct. Restaurants, Bill Johnson’s tions] Act.” (1991). 113 L.Ed.2d 382 This two-tiered Thus, 743, at 461 U.S. S.Ct. 2161.13 requires disprove process plaintiff consistently Court has held legal viability challenged lawsuit’s activity invoking judi- petitioning that entertain evidence before the court will deserving un- process cial is viability. of the suit’s economic objectively it baseless and motivated less is Investors, Real Estate Professional by an purpose. unlawful Indus., Inc., Pictures 508 U.S. Columbia In accordance with Real Professional 1920, 49, 60-61, 113 123 L.Ed.2d 611 S.Ct. Estate, I that MLBPA would conclude is (1993). “baselessness,” To a ascertain entitled to from all of Card- litigant whether the court must consider arising toons’s state tort claims from the “probable cause” to initiate the had Champs allegations letter unless action. Id. at 113 S.Ct. 1920. If there litigation con- wrongdoing and cause, automati- probable the defendant objectively tained in the letter were base- enjoys Noerr-Pennington immunity, cally less, lacking probable in the sense of second, subjective motivation and the cause, employed primarily improp- for Real Estate test prong the Professional purposes. er at irrelevant. See id. becomes would be consistent with may holding Probable cause to sue Such S.Ct. 1920. Smith, an McDonald v. 472 U.S. exist when the law is unsettled or when (1985),in by exist- 86 L.Ed.2d 384 which arguably “action “warranted S.Ct. [is] petitioning addressed whether ing very law’ or at the least based on [is] to the executive branch of objectively “good argument activity faith for the directed an ” at letter to the existing government specifically, extension ... of law.’ Id. — 11). be immune from state (quoting Fed.R.Civ.P. President —should 113 S.Ct. 13. Bill Johnson’s Restaurants prevail its state law claim. 461 went on to hold did not employee proceed his or that the could with U.S. at 103 S.Ct. employer practices her unfair labor case if the arising the same ferent tort claims from Relying on White of libel. tort claim How.) inject (3 activity would unneces- Nicholls, petitioning 11 L.Ed. 44 U.S. analysis into the of Petition sary confusion (1845), York Times Co. and New under- immunity, perhaps even Sullivan, Clause 376 U.S. immunity by producing conflict- (1964), held that mine such the Court L.Ed.2d case, example, ing immune results. activity was not the assertion with Cardtoons labels as libelous if carried out liability for libel “ be- is, “[MLBPA] and the letter malice, ‘falsehood actual ” McDonald, activities of lieve[s] [Cardtoons] cause.’ probable absence of property rights pub- valuable (quoting violate the at 472 U.S. How.) (3 291); players MLBPA them- White, licity see also and the at 44 U.S. 10.) Times, at This (Appellant’s App. 84 selves.” at York New allega- coextensive with the malice as “with statement (defining actual wrongdoing participating reck- tions of it was false or with knowledge that — which the threats of false or those activities—on of whether was disregard less consistency not”). Doctrinal litigation rele- are based. particular In a statement case, that the issue of whether these requires noted that its the Court vance to this will be afforded Petition Clause Amendment does statements that the First conclusion stan- peti- by single be determined absolute provide objectively baseless standard.15 was consistent dard —the government tions to the heart of principle test: litigation sham II “ immunized litigation is not ‘[B]aseless ” petition.’ the First analytical framework Applying this (quoting 105 S.Ct. 2787 McDonald bar, agree with the district the case at Restaurants, Bill Johnson’s allegations court’s conclusion 2161; Mo- citing con- infringement California and threats of Transport, tor objec- letter were tained 609).14 Therefore, I would af- tively reasonable. firm. any practical there are To the extent “actual McDonald’s

differences between Real malice” standard Professional standard, I “objectively baseless”

Estate’s applicable the latter more

would find judicial activity invoking allegations wrongdoing.

process through

Moreover, reject suggestion Cardtoons’s the McDonald stan- very at the least determining applied be

dard should libel immune from the

whether MLBPA is to de- different standards Applying

claim. immunity from dif-

termine a defendant’s tionally-mandated actual malice standard. suggestion, Contrary majority's Mc- 14. that individuals do Donald 's conclusion enjoy immunity from state common absolute arising statements made in law claims from based on extent a libel claim is 15. To the government does not mean petitions to the other letter assertions in a cease-and-desist protection from that there is no constitutional allega- factual bases for the than Rather, McDonald makes such claims. litigation, infringement tions arising peti- actions clear that state libel might appropriate. the McDonald standard tioning activity proceed cannot unless ele- with the constitu- of libel are consistent ments notes cases, they imply extent competitor to sue threat directed one’s private parties threat of suit mere between does not to seek relief or administrative government. constitutes government....” ‘petition’ involve or Hovenkamp, Philip E. Areeda & Herbert in Allied decision Court’s Law, § at 237. See also Antitrust 205e Head, Corp. v. Indian Tube & Conduit Inc., Technology, Seagate Rodime PLC (Fed.Cir.1999) (noting support also lends persuad- defendant meetings which That case involved our conclusion.7 negoti- license ed to end potential licensees Association Fire Protection National

Case Details

Case Name: Cardtoons, L.C., an Oklahoma Limited Liability Company v. Major League Baseball Players Association, an Unincorporated Association

Court Name: Court of Appeals for the Tenth Circuit

Date Published: Apr 7, 2000

Citation: 208 F.3d 885

Docket Number: 98-5061

Court Abbreviation: 10th Cir.