*1 235) J., Majority (Cudahy, case. approach Op. dissenting). this See The First However, in- Leahy factually 7. is both rejected at also Leahy analysis, Circuit In apposite legally Leahy, outdated. observing that it “conflates contractual found that because Seventh Circuit rights statutory Manning, ones.” bargaining agreement’s “the collective at n. paucity F.3d 9. Given the guarantee compensation of overtime support for Leahy and the likelihood that eight time worked in excess hours holding did not Wright, survive duty hour tour eight-and-one-half an Majority’s Leahy reliance on to dismiss officers’ protects Chicago police FLSA Plaintiffs’ claims is mistaken. ...
rights compensation[,] to overtime agreement liability is a defense to under III. Conclusion plaintiffs’ suit FLSA and the cannot Complaint, their Plaintiffs forth set succeed.” 96 F.3d 282. The instant allegations sufficient state claim that factually is from Leahy case dissimilar be- period their meal should be considered explicitly precludes cause the CBA here compensable work under the FLSA. For making the arbitrator determina- alone, this reason their claims should not concerning compliance tions with the Further, have been dismissed. while dis- Indeed, FLSA.8 the arbitrator’s ambit counting Plaintiffs’ fáctual allegations, the CBA, scope here was limited to the Majority decides this matter overvalu- and the arbitrator did not ques- reach the ing compensation the CBA’s provisions— tion of whether the FLSA had been vio- disregarding Supreme relevant lated.9 precedent process. Ending Further, Leahy’s holding questiona- lawsuit clearly improper. now is I re- post-Wright Wright ble did not spectfully dissent. plaintiffs address whether the had exer- cised a “clear and unmistakable waiver” of statutory right
their to a federal forum. 81-82, Wright, Indeed, appeals no court of fol- has Leahy
lowed in the years nineteen since it
was issued. Two of our sister circuits Leahy,
have addressed and each has squarely rejected its holding. The Fifth REALTY, HANOVER 3201 Leahy, Circuit dismissed noting, “[n]ot LLC, Appellant only majority position is the ‘preposterous,’ it completely ignores Court’s ” SUPERMARKETS, INC.; VILLAGE because, decision Barrentine “[u]nder (names Corporations Barrentine, being Abc 1-10 plaintiffs’ right pur- [ ] sue a suit fictitious and under the FLSA is unknown but described completely independent corporations rights from their those under the associated with Bernard, (foot- Village CBA.” 154 F.3d at promot 263-64 that assisted with and omitted) (quoting *2 acts); 1- anti-competitive John Does (names being and un- fictitious those individ- described as but
known Village that as- associated
uals promoted use of
sisted with anti-competitive litigations and
sham
acts); Horsehill Devel- Hanover and
opment LLC.
No. 14-4183. Appeals, States Court
United
Third Circuit.
Argued: June 2015. Nov.
Opinion Filed: *4 THE
OPINION OF COURT FUENTES, Judge, with whom Circuit AMBRO, Judge, joins Circuit as to Parts GREENBERG, II.A.2, II.B, II.C, Judge, joins as to Part II.A. Circuit (“Hanover Realty, Hanover 3201 LLC Realty”) signed Wegmans a contract with develop supermarket property on its Hanover, Jersey. agreement New required to secure all necessary governmental permits ap- provals prior breaking ground. Village Supermarkets, (“ShopRite”) Inc. owns the ShopRite. ShopRite local Once subsidiary Hanover and Horsehill Devel- (“H opment Development”) LLC & H “Defendants”) (collectively, caught wind Wegmans might entering mar- be ket, they filed numerous administrative *5 challenges Realty’s and court to Hanover permit applications. Believing these fil- ings only were baseless intended entry competitor, frustrate the of a Hano- Realty ver sued Defendants for antitrust Realty alleged violations. Hanover attempted Defendants restrain the market supermarkets for full-service as Cecchi, Agnello, Esq., M. E. John James well super- market for full-service Esq., Lindsey Taylor, Esq. [Argued], H. space. market rental The District Court Byrne Brody Ag- Carella Cecchi Olstein & suit, holding dismissed the that Hanover NJ, nello, Roseland, Attorneys Appel- for Realty did not standing have antitrast be- lant, Realty, Hanover 3201 LLC. wrong plaintiff cause was the was—it consumer, not a competitor, participant or Anthony Argiropoulos, Esq. [Argued], in the restrained markets and thus did not Kane, Esq., Epstein Thomas Becker & injury sustain the type the antitrust Green, Center, Newark, NJ, Gateway One laws were to prevent.1 intended Fassett, Esq., David Arseneault & Fas- W. that, sett, Chatham, NJ, respect conclude with Attorneys We Appel- for claim lees, attempted monopolization of the Village Supermarkets, Inc. and Hano- supermarkets, market for full-service Development ver and Horsehill LLC. District Court took too narrow a view of AMBRO, FUENTES, injury. Realty Before: Hanover can es- GREENBERG, Judges. “inextricably injury Circuit tablish was ing" approach 1. For the reasons set forth in Part III of to determine the outcome of concurrence, agree partial Ambro's with judgment in this case. Judge Ambro's decision to use an “issue vot- years agreement, mits within two anticompeti- Defendants’ with intertwined” away However, Wegmans could walk from the deal. as to the claim for tive conduct. of the market monopolization attempted is the ShopRite proprietor Defendant cor- the District Court space, rental in ShopRite supermarkets Jersey, New Hanover rectly found no in including ShopRite Hanover that with Defendants compete does not away from the site of the about two miles that Hano- also hold in that market. We Wegmans. ShopRite proposed sufficiently alleged that Realty has ver replaced 2013 and opened November undertaken activity here was petitioning Plains,-which previous one Morris the claims regard to the merits of without H closed. Defendant & H De- has since using govern- purpose and for the velopment, wholly-owned subsidiary such, As process to restrain trade. mental ShopRite, property owns the on which the that De- Realty can demonstrate Hanover sits, ShopRite and leases the land Hanover protected by Noerr-Pen- fendants are building ShopRite. ShopRite and H immunity because their conduct nington H have the same decision Development & litiga- for sham exception falls within the Realty alleges makers. Hanover that the part, affirm in Accordingly, we will tion. ShopRite only in Hanover is the full-ser- and remand to the District part, vacate operating greater in the supermarket vice proceedings. for further Morristown area. Wegmans news broke that Once 1. BACKGROUND town, Defendants launched a coming to Realty is a real estate Plaintiff Hanover campaign designed block petitioning of a of land developer plot and the owner obtaining per- Hanover Hanover, July Jersey.2 New approvals proceed it needed to mits and lease and Realty entered into a fil- project. We describe these with agreement Weg- site-development ings here. *6 a constructing purpose mans for the First, Realty applied for a Hanover supermarket.” App. 66. “full-service (“Flood Permit Per- Flood Hazard Area supermarkets, contrast types These mit”) Jersey Department New counterparts, from the ’grocery local store to their (“Environmen- Protection “one-stop shop- Environmental provide customers with Realty After Hanover Department”). tal experience. App. 67. Full-service ping” (on permit, ShopRite behalf only traditional received supply not supermarkets amenities, Development) H & H submitted in- itself and but also additional groceries, Depart- to the Environmental appeal on-site din- an cluding prepared go, foods to adjudicatory hearing an requesting ment liquor, specialty and ing options, wine seeking an order that would vacate phar- and and other services such as products, they macies, banks, Defendants asserted permit. fitness centers. The and bring appeal standing had agreement placed site-development in Morris then-existing ShopRite Realty all on Hanover to obtain burden “detrimentally impacted” be to Plains would necessary governmental permits prior Wegmans. from the competition If Hanover Real- beginning construction. months, De- the next five per- App. 74. Over required to secure the ty was unable Skolas, indicated, public See Schmidt v. ters of record. the facts are 2. Unless otherwise Cir.2014). (3d complaint, amended docu- taken from the upon complaint, and mat- relied in that ments ment, Realty submitted additional documents Hanover corrected this “ad- fendants Department, to the Environmental includ- ministrative error” the next week and ing objection Realty that Hanover application. App. submitted revised comply failed to with relevant notice re- ecological The consultant also voiced its an amended for an quirements request and proposed concern that the site of the adjudicatory hearing. Wegmans a potentially suitable habi- endangered species, tat for certain includ- Realty a month after Hanover About later, ing days the Indiana bat.3 A few action, complaint in filed its amended Defendants submitted another letter Department the Environmental issued an Department, the Environmental this time denying request order Defendants’ for a requesting meeting to discuss the Wet- hearing. ShopRite It first found had “strongly urg[ing]” lands Permit and it to “[cjourts standing, explaining no “diligently prudently” per- review the consistently proximity any held that mit act granting and not with “haste” in type generalized property right shared approval. App. 78. following property with other owners such as recre- months, ecological Defendants’ consultant interests, traffic, views, quality ational complained to the United States Fish and life, property values are insufficient to Wildlife Service about the Wetlands Per- particularized property demonstrate Service, mit. In one email to the Wildlife right required party to establish third consulting firm praised itself hearing.” App. for a 157. Sho- “managing] delay the issuance of the property rights” pRite’s “generalized approvals based on a [Wetlands] technical- “greater competition” its claim of from the ity” and said that objec- its substantive proposed were not Wegmans enough to “may delay things tions longer.” a bit aggrieved party. show that it was an App. Realty 80. Hanover responded to Department Environmental also evaluated Defendants’ challenge multifaceted of Defendants’ arguments substance submissions, explaining why, own in its them merit. found without view, objection each was unsubstantiated: Second, Hanover submitted a Moreover, alleges multi-permit application to the Environ- Defendants knew the wetlands issue Department seeking mental various wet- federally waters, are not regulated but (“Wetlands Permit”) approvals lands nonetheless contacted the Wildlife Service Wegmans project. An ecological con- process. to add friction to the review sulting firm sent a letter to the Environ- *7 Department mental on behalf of Defen- The Department Environmental issued raising challenges dants various Realty requested to this Hanover Wetlands objection Permit, permit. subject One was that Hanover to various conditions. One Realty’s neighboring notice to landowners required Realty such condition Hanover “technically App. was deficient.” 77. survey conduct a for the presence of response objection, to this and as “re- Indiana prior bats to construction.4 After quired” by the Depart- Environmental the Environmental Department issued the may endangered/mammals/inba/inbafctsht.htrnl 3. Indiana bats be found over a broad States, (last 13, 2015). including Aug. swath of the United New visited name, Jersey. But true to half of this bat does, fact, population brief, hibernate in Indiana. appellate Realty In its Hanover in- Sheet, See Indiana Bat Fact U.S. Fish & Wild- forms us that it conducted the Indiana bat Service, http://www.fws.gov/midwest/ survey life and no bats were found. negotiated develop- counsel had request their submitted Defendants permit, challenge agreement. er’s hearing to adjudicatory for an approval.5 Transportation of is- Department to the by responding parties’ Hano- sued a letter Third, of land owned the tract relating to the subject of several various submissions Street Realty ver has been began by The letter years, application. includ- Permit and sales over contracts acknowledging Department that developer’s agreement four-phased ing Transportation “required to consider Jersey Department with the New back, data, arguments any analysis, to 1978. relevant that dates Transportation App. 165. It parties.” owner of the submitted third agreement, Under that pro- that the improve- agreed road then with Defendants make certain land must generate traffic posed development of de- would phases various ments as it reaches that exceed the hours would Realty believed the Hanover velopment. certain I, by Phases contemplated level of traffic Phase III trigger would Wegmans project II, developer’s agreement. III of the agreement. of the Consistent' Moreover, although specifically it did not Realty Hanover submitted understanding, overpass mention the or whether Phase IV Major Intersec- an for a Street application obligations implicated, would be the De- Permit”) (“Street to the De- tion Permit Transportation Weg- said the partment in which it Transportation partment project trigger mans “would the need nearby to a inter- proposed improvements highway improvements stipu- additional Wegmans section in connection with [developer’s] agreement.” lated in the a letter Defendants submitted project. however, noted, App. 167. It pro- then objecting application, to the “improvements may longer appropri- no be open public ceeded to file number therefore recom- ate or feasible” and seeking additional infor- requests records Realty negotiate a mended that Hanover contest the upon they mation which could agreement with the modification another application. Defendants then sent Department Transportation. App. 167.6 Department Transportation letter to the Wegmans project informing it Fourth, mid-2012, Realty Hanover developer’s trigger would Phase TV of the applied Township to the Hanover Commit- said, result, Defendants agreement. aAs proposed property tee to rezone the required to build Hanover for retail Wegmans so that it could be used nearby highway before overpass summer, over The next Hanover space. any further. Hanover Real- proceed plan could approval of its final site received engineering traffic consultant ty and its variance. Defendants request for a bulk own, explaining objections during of their lodge any submitted letters not did Instead, (including August requirements year-long process. that the Phase IV (on H of itself and & overpass) implicated ShopRite were not behalf Realty alleg- an action lieu of Development) H filed Wegmans project. Jersey in New state prerogative knew the Phase IV writs es that Defendants approval. seeking nullify court triggered obligations were *8 that, Realty us in a letter 6. Hanover informs supplemental letter filed with 5. In agreement that, renegotiating developer’s Court, after Realty says in June Hanover revising proposal, the De- otherwise its Department denied the Environmental partment Transportation issued the Street hearing. request Defendants’ for April Permit in 2015. months, complaint amended also contains five-state Defendants the next several Over law claims. which complaints, amended filed three were filed for the Realty alleges Hanover to dismiss the com- Defendants moved delay. purpose The plaint independent for four reasons. District Court found the threshold issue of Realty had after Hanover In June standing dispositive and dis- present in the complaint amended filed its ground. on that It complaint missed of New Jer- litigation, Superior Court that, matter, plain- general observed as a dismissing prerog- sey issued order tiffs in antitrust suits must be either con- The court found that ative writs action. competitors sumers or of the defendant party” not an “interested ShopRite was here, the restrained the markets market — allege suggesting facts it failed to rental supermarkets supermarket use, acquire, enjoy either of “right its Realty Hanover neither a con- space. was affected nearby would be properties” nor of Defendants in competitor sumer Realty’s Hanover site by approval ac- either market. The District Court addition, court In plan. App. 136. knowledged exception the limited that it had rejected ShopRite’s argument consumer/competitor requirement per- as a local standing based on its status injuries “inextricably sons are inter- whose ruling against ShopRite After taxpayer. twined” with the harm caused defen- issue, standing the court also ad- on the Realty dants. But it found Hanover did ShopRite’s argu- disposed dressed and exception not fit within that narrow either. the merits. ments on result, Realty Hanover had suffered As many legal Defendants’ Frustrated injury no antitrust and thus had no anti- Realty challenges, Hanover sued Defen- pursue trust its Sherman Act dants in federal court. its amended play, a federal claim in claims.7 Without Realty alleges that complaint, Hanover sup- the District declined to exercise objections Defendants’ administrative jurisdiction plemental over the state-law anticompetitive state-court suit were mere Realty appealed.8 claims. Hanover designed keep Wegmans shams out of II. DISCUSSION Specifically,
the market.
asserts claims
Act for
under Section
of the Sherman
arguments
sup-
Defendants raise four
conspira-
(1)
of and
attempted monopolization
Han-
port of the District Court’s order:
cy monopolize
greater
Morristown
Realty
over
does not have antitrust stand-'
(Count
(2)
market
supermarket
full-service
ing;
petitioning activity
Defendants’
One)
Noerr-Pennington
greater
and the
Morristown full-ser-
protected by
market,
(3)
doctrine;
center
supermarket shopping
Realty
vice
has not suffi-
super-
ciently alleged
dangerous
which it describes as the market for
that there is a
(Count Two).
probability
space
achieving
market rental
Defendants
mo-
parts
jurisdiction
7. The District Court also dismissed the
8. The District Court had
under 15
§
§§
U.S.C.
and 28 U.S.C.
conspira-
of Counts One and Two that assert
jurisdiction
and we have
to review the District
cy to violate the
Act because Hano-
Sherman
§
Court's final order under 28 U.S.C.
allege
particulars
ver
failed to
grant
We review de novo a district court's
aof
conspiracy.
this
As Hanover
does not
motion to dismiss and construe all facts in the
challenge
finding
appeal, we affirm
light
nonmoving party.
most favorable to the
the dismissal of Counts One and Two to the
Investors,
See Rea v. Federated
they
conspiracy
extent
claims.
contain
Cir.2010).
(3d
*9
(4)
a clear
Realty has
even when there is
violation of the
and Hanover
nopoly power;
laws,
monopo-
§
specific
only
“proper
a
intent
antitrust
allows
a
plead
failed to
plaintiff’
bring
private
remedy
suit to
lize.
that violation. See Associated Gen. Con-
Standing
Antitrust
A.
Cal.,
tractors
Inc. v. Cal. State Council
of
519, 544,
Carpenters, 459 U.S.
103 S.Ct.
standing.
antitrust
Sec-
begin with
We
(1983).
897, 74 L.Ed.2d
other
prohibits any
Act
tion
of the Sherman
words, only
§
plaintiffs
2.
certain
have “anti-
attempt
monopolize.
15 U.S.C.
Act,
turn,
31,
de-
n.
Clayton
standing.”
4 of the
trust
Id. at 535
103 S.Ct.
Section
may bring a
persons
who
In describing
fines the class
how to undertake the
“any person”
antitrust suit as
who
private
standing inquiry,
Supreme
antitrust
injured “by
anything” prohibit-
reason of
that,
is
Court has warned
because of the
15(a).
§
by the antitrust
laws.
Id.
ed
variety
that may
“infinite
of claims”
arise
extraordinarily
language
broad
re-
This
4,§
rule”
under
“black-letter
cannot dic-
Clayton
purpose
Act’s remedial
flects the
536,
every
tate the result in
case.
Id.
private
intent to “create a
Congress’s
Instead,
spective
saying “we have not extended
precedent
market,
sought to
Defendants
out of the
‘inextricably
exception be-
the
intertwined
competitor,
their
but
impose costs not on
plaintiffs
in which both
yond cases
with
Realty,
party
the
tasked
on Hanover
selling
in
defendants are
the business
necessary permits
before
obtaining
the same relevant
goods or services in
Absent this re-
begin.
construction could
market,’
they may
directly
not
though
Realty and
lationship
Hanover
Ethyp
between
against each other.” See
compete
Broadcom,
harm,
conduct “would
Wegmans,
(quoting
Defendants’
at 237
707 F.3d
320-21). According to Defen
purpose
without
or effect.” Ste- 501 F.3d at
been
dants,
Realty and Sho-
because Hanover
No.
Local Union
420 Welfare
amfitters
market,
in the same
Inc.,
912, pRite
operate
do not
Morris,
171 F.3d
Philip
Fund v.
Realty cannot
antitrust
“Hanover
establish
Cir.1999).
(3d
would
And Defendants
injury unless the Court were
break
inflicting
by
scheme either
succeed
their
greatly ex
and Broadcom and
Ethypharm
Realty that it
high costs on Hanover
such
‘inextricably inter
scope
pand
by
project
forced to abandon the
was
expansion that
exception
twined’
enough so that
—an
delaying
project long
Appellees’
the rule.”
Br.
would swallow
agree-
out of the
Wegmans would back
19.
scenarios, injuring
In
Hanover
ment.
both
by
De-
read too much into these
very
means
which
Defendants
was
matter, just be-
As an initial
Wegmans;
statements.9
get
fendants could
statement, clarifying
the conclusion in
pause
We
note that at least one of our
Barton,
(which
as an absolute
discussing
injury
lan-
"if construed
antitrust
contains
cases
be), may
arguably
not
in some circum-
Bar-
it need
guage
potentially overstated.
In
that is
Pittinos,
that conflict with Su-
mentioning
stances lead
results
&
without
the “inex-
ton
doctrine,
precedent.” Carpet
preme
and other
tricably
we
no
intertwined”
found
Ass’n,
Grp.
Rug Importers
plaintiff
Int’l v. Oriental
injury
was "not
Cir.2000),
Inc.,
(3d
overruled
competitor
the market in
or a consumer in
Prods., Inc.
grounds, Animal Science
allegedly
on other
restrained.”
which trade
(3d
Corp.,
F.3d 462
v. China Minmetals
We
cast doubt on that
F.3d at 184.
later
not
exception
rely
cause we have
extended the
market.10
mostly
Defendants
on the
beyond parties
goods
that sell
or services Sixth Circuit’s decision in Southaven Land
suggests
in the same market
no means
Inc.,
Hyde,
Co. v. Malone &
ty; although
sought
the defendants there
Shopping Centers
competing psychologists
to harm
and not
subscriber,
plaintiff
plan
health
rely
Hanover
does not
on the
Supreme Court declared that the denial of
“inextricably intertwined” doctrine for its
receiving
reimbursement
for those
treat-
attempted monopolization
concerning
claim
psychologists injured
plain-
ment from
the market
for full-service supermarket
“directly.”
tiff
S.Ct.
Instead,
shopping centers.
Hanover Real-
Likewise,
legal
Defendants’
chal-
ty argues
directly
that it
competes in this
injured
lenges directly
Realty.
Hanover
If
space
market for rental
with H & H Devel-
attempt
prevent Wegmans
Defendants’
opment, which owns the land on which the
fails,
leasing
property
Hano-
then
ShopRite resides.
ver
will have suffered the costs of
injury ordinarily
Antitrust
lim
is
responding
legal challenges
while
ited to
competitors
consumers and
in the
Wegmans may
experienced
no
loss
restrained market. See Ethypharm, 707
addition,
all.
to the extent Defendants
F.3d at 233. If doubts arise as to whether
lease,
in obstructing
succeed
parties
competitors,
are
we look to see
Realty’s loss of rent under the contract
whether “there
a cross-elasticity
of de
directly
through
would result
and not
“sev-
plaintiffs’
mand between the
offering and
eral
vaguely
somewhat
defined links.” As-
*15
offering.” Carpet Grp.,
defendants’
Gen.,
sociated
179
exception
governmental process
returned to the
opposed
The Court
—as
Investors, Inc. v.
Real Estate
of that process
outcome
an anticom-
Professional
—as
Industries,
Inc.,
Pictures
60-61,
Columbia
petitive weapon.” Id. at
113 S.Ct.
49,
1920,
(citations
POSCO,
genuine
extract success
Defendants
parties.
third
long
possi-
as
pending
the suit
keep
to
That
statement,
not.
but we do
that
from
ble.
was re-
Transportation
of
Department
the
mo-
victorious
claim two
Defendants
challenge
Defendants’
to consider
quired
Per-
the Wetlands
respect to
ments with
had
arguments
their
mean that
does not
they
to the fact that
point
first
They
mit.
have
did
Defendants
Where
any bite.
technical deficien-
successfully identified
however,
Depart-
success,
was in the
some
that the Environ-
application,
cy in the
that the
finding
Transportation’s
ment
Re-
required Hanover
Department
mental
the
triggered
developer’s agreement
prior
error.
this administrative
correct
alty to
improvements.
highway
for additional
need
in the
single
hitting
this to
We liken
Realty
But,
requiring Hanover
rather than
Realty
Hanover
submitted
inning.
second
the letter
improvements,
those
to make
the
days and
application within
a new
might
construction
that such
recognized
Waugh,
resolved.
was
problem
It therefore
or worthwhile.
feasible
not be
(“[T]he
may be
that there
fact
F.3d at 365
Realty negoti-
that Hanover
recommended
law-
a series of
within
of merit
moments
agreement with
to the
a modification
ate
a campaign
with
not inconsistent
suits is
before
Transportation
Department
the
remind
also
litigation.”). Defendants
sham
This action was
any further.
proceeding
re-
Department
that the Environmental
us
chal-
Defendants’
partial success because
survey
Realty to conduct a
quired Hanover
merit,
it did not
have
but
did
some
lenge
bats,
had
as it
of Indiana
presence
for the
Transportation
Department
the
cause
qualify
not
But this also does
requested.
reject
permit application.
actually
the
of Defen-
goal
The ostensible
as success.
record
all,
and the
allegations
the
All in
the Environmen-
challenge was for
dants’
the
Realty received
that Hanover
show
Per-
deny the Wetlands
Department
tal
Permits,
got
the
and Wetlands
Flood
They
mit.
were unsuccessful
dismissed,
it avoided
action
state-court
per-
received the
front;
Realty
Hanover
im-
highway
significant
having to make
subjec-
alleges
also
Realty
mit. Hanover
meager record
Defendants’
provements.
governmental
the
abusing
tive evidence
Realty’s
Hanover
supports
merits
on the
allegedly complained
Defendants
process.
not
filings
the
were
allegation
Fish and
States
Wildlife
to the United
Nor
any grievances.
to redress
brought
wet-
they knew the
though
Service even
any genuine
articulated
Defendants
have
federally regulated
are
lands at issue
pro-
or traffic near
flooding
interest
Moreover,
email, Defen-
in an
waters.
away
(which
miles
is two
Wegmans
posed
abili-
touted its
ecological consultant
dants’
in protecting
ShopRite),
approval
delay
permit
process.
ty to
Rather,
Realty suf-
Hanover
bat.
Indiana
bet-
slightly
brought
fared
arguably
Defendants
ficiently alleges
Defendants
challenge
their
of harassment
policy
ter in
with
actions under
connection
these
Re-
objec-
obstructing Hanover
They
Permit.
submitted
the effect
Street
governmental bodies.
Transportation
alty’s
access to
Department
tions to
expense on
significant
imposed
things,
filings
that Hanover
have
among other
arguing,
delay
Realty, have continued
overpass
to build an
Hanover
required
viability of
and threaten
project,
beginning construc-
before
highway
over a
That Defendants
altogether.
par-
project
responding
letter
tion.
In its
along
insignificant success
had some
did
Transportation
ties,
Department of
analysis when
alter the
way does not
to con-
required
acknowledge that it was
reviewing a pattern or
of proceed-
series
after a factual inquiry into the commercial
ings. Accordingly,
can realities
faced
Queen
consumers.”
City
establish that
exception
Pizza,
sham
Inc.
Pizza,
Inc.,
Domino’s
*20
Noerr-Pennington
immunity applies
(3d
be-
Cir.1997).
F.3d
We cannot
sufficiently
cause it
alleges that
say,
Defen-
at this very early stage in the litiga-
dants
“instituted
proceedings
tion,
and ac-
that Hanover Realty’s product mar-
tions ... with or
probable cause,
without
ket
implausible.
is
Hanover Realty alleges
regardless
of the merits of the eases.”
that full-service supermarkets are distinct
Motor,
Cal.
part
Standing
Lacks Antitrust
I. Hanover
col-
my
disagree
respectfully
Injury
Antitrust
Law
A.
Realty
that Hanover
view
leagues’
for violation
a claim
In order
state
necessary
a
injury,
antitrust
has suffered
show
laws,
must
plaintiff
my
In
the antitrust
standing.
antitrust
component injury, which
“antitrust
it has suffered
effects of
anticompetitive
view,
the antitrust
type
injury of the
(as
say
is to
opposed
actions
Village Supermarkets’
prevent
intended
laws
directly from
were
damages sustained
defen-
[the]
makes
that which
flows from
Hanover, a landlord
tort)
not hurt
do
any
72,
store,”
ShopRite is the
App.
and that
rejected Defen-
We have considered
17.
in Greater
supermarket”
“only full-service
They argue
arguments.
remaining
dants’
Morristown,
accept those
We must
App.
achieving
probability of
dangerous
is no
there
argu-
final
allegations as true. Defendants’
full-
is another
there
monopoly because
Realty has failed
is that Hanover
Stop
ment
&
area—the
in the
supermarket
service
monopolize. For
specific intent to
allege a
maintain
Defendants
Plains.
Shop of Morris
in connection
discussed above
reasons
this fact.
Realty
admitted
has
Hanover
doctrine,
con-
Noerr-Pennington
we
rely
with the
Defendants
argument,
making that
inBut
sufficiently alleges that
Hanover
clude
complaint, not its
Realty’s initial
on
proceedings
of sham
a series
filed
Defendants
operative.
is
complaint, which
amended
prospective
awith
interfere
intent to
with the
al-
complaint, Hanover
amended
trade.
competitor and restrain
“grocery
Shop
Stop
&
leges that the
dants’ acts unlawful.”
Corp.
Brunswick
amount to an antitrust
By
violation.
con-
Bowl-O-Mat, Inc.,
477,
Pueblo
trast, I believe the rule remains that “anti-
690,
(1977).
My
increased
a
disagreement
result
principal
with my col-
tjie
of its
leagues
scheme (ignoring
de
price
concerns how to
the
read
“inextri-
facto
cably
increase of the
exception.
insurance
intertwined”
As I
failure
company’s
under-
stand their
opinion, they
insured),
reimburse
closely
481-84,
hew
the
the
id.
meaning
2540,
particular
those two
102 S.Ct.
words and
and that
point
the
believe that a plaintiff
alleged
has suffered an
scheme
to harm psychologists,
was
injury
antitrust
if
injury
closely
relat-
not their
patients,
478-79,
insured
id. at
ed to a defendant’s actions that also
held that de- centers,” the latter [psychia- shopping conspirators market the competitor suf- Shield], injury she that property for real Blue market and as the trists fined with inextricably intertwined supermarkets. fered was full-service used can be inflict on sought to conspirators injury supermarket in the participate not It does mar- psychotherapy psychologists developer. business; it is a landlord 483-84, 102 S.Ct. ket.” enterprise development operates It injury inex- was McCready’s reason not sell market, it does but the real-estate inflict- harm tricably intertwined services consumer provide goods was market psychotherapy ed on Hanover although Village does. And way market in that a consumer she was for real market in the participate does means the essential “injuries [were] her for full-service can be used property brought illegal conduct defendants’ which not actions have Village’s supermarkets, market- injury to its ultimate about words, In other market. affected v. Abbott S.A France Ethypharm place.” mar- in the participate not does Cir.2013) (3d 21n. Labs., restrained, allegedly that was ket Areeda, al., Anti- et Philip E. IIA (quoting re- was participate market it does ed.2007)). (3d ¶ 339, at 123 Law trust suffered thus not Hanover has strained. does means” However, “essential the term injury. an antitrust any suffers anyone who not mean anticompetitive of an in the context injury laws. under the may sue
scheme
Market
Supermarket
1. Full-service
although
plaintiff
McCready,
McCready
relationship in
Unlike
cartel’s activ-
target
ultimate
not the
*23
for
the market
plaintiff
between
used
psychiatrists
and the
ity, Blue Shield
mar-
services, whether the
psychotherapy
harm —increased
antitrust
a
classic
is ulti-
psycho-
supermarkets
full-service
to distort
ket
a fulcrum
prices—as
market,
to the detri-
not matter
specifically
does
therapy
mately restrained
McCready
The
psychologists.
Village’s
of
injuries
ment
flow
Hanover.
Its
suffers
who
person
that a
affirmed
proceedings
civil
use
wrongful
alleged
e.,
injured be-
is
who
injury---!
antitrust
Weg-
contract with
from Hanover’s
aof
anticompetitive effects
of the
cause
por-
some
Hanover
mans
allocated
bring
activity may
monopolist’s
or
cartel
—
develop the
failing to
of the risk
tion
not a consumer
person is
if that
suit even
of time.
period
a certain
within
parcel
to extract
seeks
the defendant
from whom
monopolization
alleged attempted
Village’s
competitor
or a
rents
supracompetitive
Wegmans,
hurts
markets
of the relevant
Ar-
See IIA
to eliminate.
defendant seeks
it
con-
hurts
supermarket, and
full-service
2014)
(4th
¶ 339,
ed.
at 144
eeda, supra,
among
a choice
prefer
would
who
sumers
con-
(“[T]he
alleged
of the
result
al-
not
Village is
but as
supermarkets,
very
prices
higher
would be
spiracy
the market
restrained
to have
leged
purchas-
awas
McCready
in which
market
anywhere
or
in Morristown
estate
real
purchaser
like a
McCready is thus
er....
is a
why
else,
to see
Hanover
it is hard
prices.”).
cartel
cartel at
from a
it has
even if
plaintiff
proper antitrust
otherwise
Not
out of
arising
Has
B.
tort
Hanover
claims
valid
Suffered
short,
Injury
be-
Antitrust
conduct.
anticompetitive
of Vil-
effects
anticompetitive
cause
monopolization
Here,
alleges
not
activity have
illegal
allegedly
lage’s
super-
markets,
for “full service
one
two
Hanover,
any injury
UPMC,
caused
(3d
does not
627 F.3d
Cir.2010).
an
have
antitrust claim.
And a landlord is in the same shoes as a
supplier from an antitrust-injury perspec-
authority support
sources of
Several
¶
Areeda,
tive.
IIA
supra,
351c at 286.
that a landlord is an improper
notion
anti-
plaintiff
trust
when it complains
injury
Other courts of appeals that have faced
flowing from antitrust harm directed at
facts similar to our
case
rejected
have
leading
tenant. The
treatise
standing.
deals with
landlord’s
closely
Most
point
in one
paragraph:
Stores,
situation
terse
is
“The
Jewel Food
Serfecz
(7th Cir.1995),
landlord
receiving set rather than varia-
where owners
oper-
ble rent
simply
supplier
is
an
ators of a
in-
shopping
sought
mall
to recover
put. ...
damages
Such landlords
always
tenant,
are
from an anchor
a grocery
almost
denied
for antitrust
store. The tenant opened
violations
another store
that target
their
nearby,
tenants
that occur in
vacated its old premises, and
the product
Areeda,
market.” IIA
would not
supra,
sublease them to another gro-
¶ 351c,
cery
at 286.
disposed
We
also
store.
The Seventh Circuit Court
brought by
claims
landlords without
held that
“plaintiffs
much
d[id]
have the
beyond
analysis
indicating
any
requisite
injury
direct injury to have standing to
suffered,
the landlord
when
even
its rent
assert
[the
monopo-
defendant] ha[d]
lized,
was tied to
revenue,
the tenant’s
or conspired
was too
monopo-
others to
lize,
remote from the
market,”
antitrust violation to
the retail grocery
allow
id. at 598-
bring
landlord to
plaintiffs
suit.
were players in the
shopping
market,
center
not the retail gro-
non-operating
[A]
lessor-owner of a mo-
cery business.
picture
tion
theatre who is entitled to
rental based on a percentage
receipts
Similarly, in a Sixth Circuit
gro-
case a
“person
nonetheless not a
...
injured
cery store
competitor
subleased to a
gro-
in his business or property” within the
cery store and then engaged in anticom-
meaning
Act,
of section 4
Clayton
conduct
petitive
to ruin it. Southaven
15, and,
§
therefore,
15 U.S.C.
is not
Inc.,
Land Co. v.
Hyde,
Malone &
bring
entitled to
suit under the Act for
(6th
Cir.1983).
F.2d
plain-
alleged
conspiracy relating
li-
tiff, a landlord that owned the rest of the
*24
censing of pictures at
the theatre
the
shopping center of
grocery
which the
store
lessee-operator.
part,
a
replacement
found a
grocery
Loew’s, Inc.,
Melrose Realty Co. v.
store,
but the defendant would not sub-
(3d Cir.1956)
F.2d
curiam);
it,
(per
lease to
presumably lowering the value
Pictures,
see also Harrison v. Paramount
shopping
of the
center. The Court noted
Inc.,
(3d Cir.1954) (af
that “Southaven’s
land
[the
injury
owner’s]
firming for the reasons
stated
the Dis
charged to have
[was]
accrued as a result
opinion,
trict Court’s
see
ly linked of out keep Hanover trying Village are it. standing on to confer laws” the antitrust cen- shopping supermarket the full-service Cleary, Rosenberg v. 1087; accord Id. way that the Ser- the same market in ter Hamilton, F.Supp. Gottlieb, & Steen plain- the allegedly drove defendants (“No (S.D.N.Y.1984) matter 642, 645-46 fecz mall business. tiffs out be- may exist relationship how causal the injury, violation alleged the neither Serfecz, tween plaintiffs Unlike undertaken were not actions in the specifically defendants’ HH & is nor Hanover freedom the economic with centers. shopping interfere operating business business.”). the construction developers Instead, owners participants they are allege, not does Hanover property. real Court’s I read Because de- parcel’s value example, for require standing to eases on antitrust our & H’s and H following Village creased at least “inextrica- to be harm plaintiffs competitors to exclude attempts makes whatever with bly intertwined” super- land on which owning for market an anti- specifically conduct defendant’s And the Com- can be leased. markets re- prices or higher e.g., trust violation— Village’s efforts allege that plaint does lacks Hanover believe output duced —I real property for the market have affected allegedly un- respect to standing with any anywhere else or in Morristown super- full-service lawful restraint has not As Hanover degree. significant dis- respectfully Hence market. market monopolis- Village’s alleged plausibly my colleagues the decision sent from landowner, it injured it as tic conduct has this issue. reverse on of its frustration that the be said cannot Wegmans “reflect[s] contract Supermarket 2. Full-Service ... of the violation.” effect anticompetitive Market Shopping Center 690; Brunswick, competes alleges that also (“In ¶ 351b1, at 284 Areeda, supra, IIAcf. H, purpose special H & directly with cases, example, the defen movies Village’s su- land for entity that owns film depriv[ed] ... rival conduct dant’s supermar- “full service in the permarket, distributors, of ad or exhibitors producers, greater market” center shopping ket supplies. to markets access equate market, title for Morristown. This to those interests: stranger is a landlord mouthful, confusing, as being a besides is not as a whole market real estate are to be landown- said players the market affected.”). significantly can be utilized is or property “whose ers ably ex- Thus, the reasons supermar- a full-service rented to by or Fuentes’ in Part II.A.2 pressed ¶ 69. Thus J.A. Compl. Am. ket.” *25 anti- lacks that Hanover I opinion, agree The property. real for certain market is it calls standing respect with trust wjhat in- standing lacked who plaintiffs, Serfecz cen- supermarket shopping full-service monopolization of they alleged sofar as market. ter market, had nevertheless grocery retail cen- shopping respect to the standing with and Remain- Pennington II. Noerr — at 599. This F.3d ter market. 67 ing Issues in a ownership interests they had on Fuentes’ views Judge (a agree I with former mall, anchor and the defendant other Village’s Pennington store) allegedly collud- grocery tenant Noerr — 189 objections to Complaint. Hanover’s case, Hence shifting majorities with varied lines join I Part opinion. II.B-C his of reasoning are common; more these var-
iable groups unquestionably describe the
III.
to Decide
How
This Case?
holdings
See,
the relevant courts.
e.g.,
Booker,
United States v.
220,
125
presents
This case
what academic litera-
738,
(2005)
S.Ct.
(resolv-
for me bound to be the-majority’s opin- ment on based the relevant legal court’s ion on antitrust despite my dis- conclusions even if judge disagrees agreement with it. explain Before I my with the court’s resolution of a dispositive detail, choice I shall survey the current However, issue. quite rare that state of thinking on this issue. judges are actually faced with voting paradox where it is debatable whether the A. Law and Scholarship on the Voting proper result is to vote according Paradox judge’s personal preference or to vote ac- Although I do not on an entirely write cording shifting majorities’ statements blank slate respect issue, to this there law. three Supreme cases, is surprisingly little judicial discussion in justices have noted that their votes opinions about how one ought to vote judgment when were inconsistent with their indi- *26 facing a paradox. such a majority Where vidual of the proper views of the outcome agrees on the bottom-line outcome ain case. Fulminante, Arizona v. 499 U.S.
190
1246. At
302, 111 S.Ct.
harmless,
at
id.
1246,
302
113 L.Ed.2d
313,
279,
111 S.Ct.
thought
the
time,
justices
five
same
the
the
in
J., concurring
(1991) (Kennedy,
been
have
should
Court
Supreme
Arizona
Gas
v. Union
Pennsylvania
judgment);
reason.
no consistent
reversed, though for
2273, 105
45,
1,
S.Ct.
109
Co.,
U.S.
491
(opinion
1246
306, 111 S.Ct.
id. at
concurring in
(White, J.,
(1989)
1
L.Ed.2d
not
was
C.J., that confession
Rehnquist,
dissenting
and
part
judgment
the
O’Connor, Kennedy &
by
coerced, joined
Vuitch, 402 U.S.
v.
States
United
part);
1246
312, 111
JJ.);
S.Ct.
Souter,
id. at
(1971)
601
1294, L.Ed.2d
96,
28
62,
91 S.Ct.
C.J.,
joined
Sca-
Rehnquist,
(opinion
jurisdiction);
as to
J., dissenting
(Harlan,
was
confession
J.,
admission of
lia,
of Black-
(opinion
1294
97, 91 S.Ct.
at
id.
yielded
harmless).
Kennedy
Justice
J.).
mun,
the
of whether
question
the
majority
especially
are
and Vuitch
Fulminante
reached
and thus
was coerced
confession
case, the Arizona
the former
relevant.'
issue;
he concluded
the harmless-error
was
a confession
held that
Court
Supreme
sup-
and thus
harmless
was not
admission
v.
State
inadmissible.
and thus
coerced
Arizona
affirming the
judgment
ported
602,
237,
P.2d
Fulminante,
778
Ariz.
161
313-14, 111 S.Ct.
at
Id.
Supreme Court.
279, 111 S.Ct.
U.S.
(1988), aff'd, 499
627
Harlan
Likewise,
Justices
in Vuitch
1246.
deciding
(1991). In
302
1246, 113 L.Ed.2d
majority's dis-
ato
Blackmun acceded
reverse,
the U.S.
to affirm
whether
together
jurisdiction,
as to
position
but —
(1)
issues:
three
faced
separate
justices
other
—formed
was
confession
defendant’s
whether
97,
96,
at
402 U.S.
on merits.
majority
error
(2)
so,
harmless
coerced;
if whether
1294.3
S.Ct.
91
so,
(3) if whether
applied;
analysis
of United
opinion
panel
in the
Similarly,
harmless
was
confession
admission
(8th
984, 985
Andis,
F.3d
277
279, 282,
v.
Fulminante,
States
U.S.
499
error.
(8th Cir.
rev’d,
886
Cir.2002),
F.3d
justices conclud
Five
1246.
295,
S.Ct.
that the
2003) (en banc),
judges held
two
287,
coerced, id. at
was
the confession
ed
could
illegal sentence
appeal
right
of five
group
1246; a different
111 S.Ct.
majority
waived,
a different
but
be
applies not
error
harmless
concluded
justices
be vacated.
sentence should
311-12,
111 (cid:127)held
confessions, id. at
coerced
would
independently,
acting
judges,
five Two
third
1246;
group
and still a
S.Ct.
the sentence —one
affirmed
not
there
admission
held that
Amend-
Eleventh
abrogate
der Article
point because
squarely on
less
Gas
3. Union
States, although I do
every
immunity of the
judgment on
ment
supported that
majority
no
reasoning.” Un-
(1)
Con-
agree
two
his
whether
with much
were
point. The issues
57,
abrogate
Co.,
S.Ct. 2273
were intended
U.S. at
gressional statutes
ion Gas
(2)
immunity
part
whether
J.,
judgment
sovereign
(White,
concurring in
state
’
Com-
power under
Congress had
absence
dissenting
part).
It was this
5,
Judge Greenberg points that out we entity reasoning through the case issue could avoid the voting paradox if I didn’t by issue rather than a collection of individ- bother to reach the Noerr-Pennington is- judges ual with a judgment reflecting a so, sue. If a majority would conclude that tally vote divorced from the reasoning of Hanover had standing, and a majority then majority of the court. The first is the would that conclude Hanover loses but nature of appellate multimember courts as without a majority supporting any particu- collegial, just redundant, and not enter- lar reason for its loss. This avoids the prises. Sager Kornhauser and explain problem of an precedent incoherent but that redundant collegial and enterprises replaces it opinion with no to provide even “aim to produce performances that could the hint of a rationale. Arguably, no rea- principle represent the unenhanced ef-' soning improvement is an reasoning over single fort person, bring but to that judgment, but, contradicts a as performance closer the ideal.” Lewis notes, Greenberg we never have to issue A. Kornhauser Sager, & Lawrence G. an opinion. just could judgment We issue and the Many: Adjudication One in Col- orders without reasoning in every case legial Courts, and (1993). 81 Calif. L.Rev. everyone save a lot of time paper. In Redundant enterprises “rely on an exter- my view, judgments we issue accompanied nal structure multiple independent ef- disagree- sideline effectively on the of not the case example, in For forts.” Id. issue. aon threshold majority with the ing ranks judge “[e]ach judges, gymnastics case, for ex- in this voting consulting issue Applying without her before
performance is- Noerr-Pennington I ample, reach aggregat- are rankings peers, her standing, no sue, though perceive contrast, collegial even By Id. by rule.” ed on the anti- view my individual in that enterprises like team “are bodies (de- is subsumed question re- trust consider must participant each dissent) into filing a my performs spite she colleagues as to her spond body single deliberative we act panel; and deliberation Collaboration her tasks. judgment produces process enter- collegial trademarks are (what- reasoning majority’s on the depends ex- interaction “While Id. prise.” *30 majority) at that of composition the antithetical ever or even irrelevant change are outcome process. the With step of are crucial they each enterprises, redundant to contrast, though judges deliber- by voting, of product enterprises, collegial to (unless they decide issues separate that on belongs to ate often enterprise collegial a depends them), judgment a way.” to reach not uniquely in a collective enterprise tallying of a who reasoning but not at 4-5. Id. a vote judge to were each win should enterpris- collegial are courts Appellate is, there- There reasons. without result deliberate on and Judges collaborate es. or synthesis fore, opportunity an less of of at all levels cases and issues about reasoning judge’s each transformation to deciding whether appeals process, provides This larger whole. into conferencing cir- argument oral hold lack of “un- Greenberg’s answer pro- At the end culating opinions. that circumstance why the derstand[ing] typically the Court judgment a cess a lead to should panel on the are all we opinion. an by supported emerges be would that which result than different to what is akin product that sense some majority of by a individually reached not do enterprises “Team produces. team 29. The result Op. at Greenberg panel.” effort: amplify product merely multiply on a we sit different be should into some- performance they transform panel. pro- could group only thing that way, while judges Put another at 3. treats Second, voting
duced.” Id. issue an job do judge could black premise individual interchangeable an —the multimem- court, process legal our appellate on which assumption and an robe typi- is product produces case, panels example, ber In our is based. system an indi- than what qualitatively cally better of three out because two prevails do. judge could appellate standing for vidual find judges parts.6 its the sum of than greater is find judges whole of three two out plaintiff Voting the defendant. immunity for no then, voting cases, outcome In some role as members our better reflects issue appellate court’s value lessens the body striving deliberative single aof engage judges If process. deliberative As noted juris. corpus a sensible craft delibera- multiple there are voting, issue outcome, prece- above, if we voted is, are delibera- votes; there tions unclear be case would of this value is dential judge A on each issue. votes tions and enterprises. team judges not say should not to 6. This is sense, fully not courts are In that dissent. (or
if the same set of facts came before us outcome, on the judge each present will court) a district second time. For a the issues in the case as he or actually she body like a court that has no means views regard them without to the potential enforce persuasion, other than mandate gains from gamesmanship framing is- it of great that “in concern cases where sues.7 arises, paradox the doctrinal judgment and There are a replies number of to this are immediately reason and inexorably l argument. First, professiona norms of pulled apart, potential to the detriment of the bench and bar go a long way in pre orderly development legal doctrine.” venting deceptive strategies in brief-and Sager, Kornhauser & supra, at 5. Second, opinion-writing. it is unclear to Arguments
C. me that Contrary are Not the resolution of issues in an
Persuasive.
outcome-vote is
principled
more
than in an
vote;
indeed,
issue
a principal problem
Thoughtful proponents of an outcome-
with outcome voting is that occasionally
voting protocol
based
argue
pro-
issues are left entirely unresolved. For
(i.e.,
motes principled
strategic)
identi-
example,
I.N.S.,
Wedderburn v.
and,
fication of issues
least
some
(7th
Cir.2000),
Miller,
applied
cases,
promotes
also
principled resolution
*31
118
(where,
S.Ct. 1428
as noted
of those issues.
See Abramowicz &
above, majorities on every issue
Stearns,
under
56-58;
supra, at
John M. Rogers,
mined
judgment),
reject
to
a similar
Voting” by
“Issue
Multimember Appellate
challenge to a different
Courts: A
statute.
In
Response to
Wed-
Some Radical Pro-
derbum,
the Court
posals,
49
(1996);
by legal
Vand.
reasoned not
L.Rev.
1002
analysis
Stearns,
by prediction
Maxwell L.
but
How Outcome
about the
Voting
votes
Principled
justices.
Promotes
individual
Issue
and (Noerr- remaining issue addressing me as pref- issue-voting strikes sequence, col- my has divided It Pennington). promise to not mean But doI erable. my needed thus vote leagues, and not issue, I do always vote I will Fuentes Judge with agree I it. resolve colleagues should my suggest mean no poses bar Noerr-Pennington seen, have As we my lead. follow or must Al- litigation. in the stage at this relief are inconsistent justices Court the District I affirm though would lawof bases, no source voting their yield to I grounds, standing And vote. of how to question resolves that issue resolution my colleagues’ ones, the capital cases, especially in some aof the lack and remand on to vacate vote judgment a implications practical —life Village. defense Noerr-Pennington than important be more may or death — an- over voting protocol one choice GREENBERG, Judge, Circuit Salop, C. Post & Steven David other. dissenting. Theory A the Tidewater: Against Rowing I, the join Sections concur with I Panels, 80 Geo. Multijudge Voting by II.A.', anti- section, and background (1992). 743, 761 L.J. section, Judge Fuentes’s trust Thus, his conclusion agree with opinion. Voting Toward The Next Case: D. plaintiff, II.A. that Section Protocol Protocol (“3201 an- Realty”), has LLC Realty, seen, judges appellate we have As super- the full-service standing in titrust choosing a their discretion guide little in the full-service not but market market tome prompts case This voting protocol. I can- space market. rental supermarket an appel- when guidepost: for one argue however, Fuentes’s agree, *32 consti- that would “arguments raises lant it ex- that I believe to the extent opinion interlocu- appeals were independent tute to Noerr-Pen- exception the sham pands voting is issue permissible,” appeals tory in join to I decline immunity. nington Nash, supra, 147-48. preferable. be- opinion Fuentes’s Judge aspect this I coherent this view case Because properly (1) Realty has 3201 cause: more valu- as from our Court precedent (2) which. issue; no court the preserved party the favor than resolution able ex- expanded the applied has I am aware deciding I were sided with I would have to comparable circumstances ception agree all and because myself, case (3) expansion here; and those easily are here presented issues the two a questionable comes exception sham Fuentes Judge I concur with separated, that conclude I therefore pedigree. ultimately favors Hano- disposition develop- Realty’s to 3201 challenges legal ver. Supermarkets, Village project ment of itself on behalf brought (“Village”) Inc. Conclusion
IV. Development Horsehill and Hanover immunity the antitrust fall within standing LLC antitrust lack should Hanover activity under petitioning to injury afforded antitrust not suffered it has light In doctrine.1 Noerr-Pennington Court’s meaning of within conclu- Judge Ambro’s However, conclusion am this I of that term. exposition (cid:127) anti- not have Realty does that 3201 sion issue, prec- sets which on this outvoted together defendants. Development LLC and Horsehill Village to I refer
197
standing,
trust
two of the three members
ions in Eastern Railroad Presidents Con-
panel
of this
believe that
the District
Inc.,
Noerr Motor Freight,
365
ference
correctly
Court
complaint.
dismissed the
127,
523,
U.S.
81
5
S.Ct.
L.Ed.2d 464
(1961), and
United
coming
my
Mine
conclusion that
Workers of
District
correctly
America v. Pennington,
657,
dismissed the
381 U.S.
85
complaint
recognize
that a majority
1585,
(1965).
S.Ct.
198 activity imma- is in petitioning engaging alleg- conduct their dants for activi- for its cause probable if had to the terial challenges legal anticompetitive edly 62, at PRE, S.Ct. at 113 508 U.S. ty. the so- See within fall project development to the doctrine. 1929. exception called “sham” established PRE, satisfy the need to avoid In an effort appli- determining the test
two-prong 3201 Re- objective prong, PRE’s threshold including both exception this cability of applies the PRE test alty contends components. subjective objective and a sin- institute the defendants only where Un- 60-61, at 1928. 113 S.Ct. at 508 U.S. here, where, not action and legal gle must plaintiff objective prong, der the chal- multiple legal brought defendants petitioning the defendant’s show 3201 enterprise. plaintiffs lenges no in the sense “objectively baseless by pointing position this Realty supports realistically ex litigant could reasonable hold- appeals courts other to eases from K BE & merits.” on the pect success accused “where the defendant ing that 526, at 2396 Constr., 122 S.Ct. 536 U.S. at proceed- legal a whole bringing series 60, at PRE, 113 S.Ct. U.S. 508 (quoting any one whether not question is ings,” “the 1928). this show cannot make plaintiff A to, may out turn merit —some of them has activity petitioning if the defendant’s ing whether of chance—but just'as matter ‘effort as “a successful has succeeded policy to a pursuant they brought are ... certain action governmental influence regard without starting legal proceedings as a sham.’” be characterized ly cannot injur purpose for the to the merits 58, at 1927 PRE, 113 S.Ct. 508 U.S. Indus. market rival.” USS-POSCO ing a Allied (alteration (quoting original) Constr. Cnty. Bldg. & v. Contra Costa Head, Corp. Indian Conduit Tube & 800, AFL-CIO, Council, Trades 1931, 502, 492, Inc., 108 S.Ct. (9th Cir.1994); Chapel Waugh accord 811 (1988)). 1938, 100L.Ed.2d 497 S., & Commercial Food LLC v. United hand, if defendant’s even other On the 354, 27, 728 F.3d Union Local Workers unsuccessful, that activity was petitioning (4th Cir.2013); Joint Primetime 363-64 2U not have that it prove did does failure Broad., Co., F.3d Nat’l Venture v. activity. See id. objective basis for an Cir.2000). (2d Herr, 5;n. at 1928 113 S.Ct. at 60 n. ac- Judge Fuentes Judge Ambro and Moreover, when the “even F.3d at circumvent- Realty’s argument cept 3201 questionable appear facts law or the objective prong satisfy the ing need outset, may party at the unfavorable believe, test. PRE dual-prong ground entirely reasonable fail for should however, the argument PRE, n. at 60 bringing suit.” First, reasons. independent at least three (quoting Christians at 1928 n. argument not raise Realty did EEOC, 434 U.S. Co. v. burg Garment *34 reply brief supplemental it until filed 694, 701, 648 422, 54 L.Ed.2d S.Ct. 98 mere “failure Beyond a in this Court. second, subjective prong for (1978)). The ar- its broader cases particular cite within to Noerr- exception establishing the sham majority exception,” the sham gument play into immunity, Pennington comes 12, Realty con- at n. 3201 30 typescript showing plaintiff the first makes only if that it District Court ceded before prong. objective exception’s satisfying two-prong test satisfy PRE’s had to 60, 1928; PRE, at at 113 S.Ct. anticompeti- any allegedly that first show Cheminor, n. 10. Accord at 123 168 F.3d activity petitioning tive “lawsuit other anticompetitive intent ingly, a defendant’s
199
baseless,”
nell,
objectively
1494,
(9th
in
Cir.1996) (no
Pl.’s Br.
102
[was]
F.3d
Opp’n to
at 9 (citing
Mot.
Dismiss
“series” where defendants initiated two
1928).
PRE,
60,
200 initiating a whole of consequences trust clear claims” makes
baseless, repetitive challenges. legal anticompetitive of only series play into comes language that this 365; at Chapel, 728 F.3d Waugh See satisfy can what first plaintiff a where 101; 24, at USS- 219 F.3d Primetime oth prong; first PRE’s ultimately became POSCO, But we should at 811. of the word “base use erwise, the Court’s excusing a this concern not alleviate use But purpose. no serve less” would objective to show the having plaintiff purpose a serve did of “baseless” single action even a of baselessness very to this pointed in PRE the Court all, if After the defendant. brought by “[n]othing that demonstrating as language shields ob- immunity Noerr-Pennington Transport retreated” Motor in California consid- actions when jectively reasonable objective compo indispensable from “an to it should continue individually, ered exception. establishing the sham in nent” aggregated. they are them when shield 58, 113 at 1927. S.Ct. at 670, at 85 S.Ct. Pennington, 381 Cf. understanding employing the ruling In a to immunity extends (holding at 1593 we appropriate, I think PRE that standing alone conduct “either petitioning uphold to objective prong applied scheme”). of a part or as broader in a immunity Noerr-Pennington claim of Judge Fuentes reason Judge Ambro defen- where the to this one case similar sense makes more test that the alternative develop- plaintiffs land challenged dants chal- multiple legal dealing when judicial ad- multiple project ment larger sample having lenges because Herr, 274 proceedings. ministrative challenge enables single challenges than also 115-16, Other courts 118-19. at F.3d a de- “assess whether the court better exception proposed rejected governmental has misused fendant that would here advanced test the PRE Majority competition.” process to curtail to show that the need dispense with treats approach this at 32. Yet typescript objectively an activity lacked defendant’s to an akin objective more prong PRE’s Express Travelers basis. See reasonable determining thumb for evidentiary rule of Payment Integrated Express Co. v. Am. an anti- possessed the defendant whether 1033, Inc., F.Supp.2d 1042 Sys., 80 the inde- rather than competitive purpose, than (D.Minn.1999) PRE (applying rather requirement pendent threshold for the Ninth Circuit’s Appeals at See 508 U.S. unmistakably represents. filed “a series though defendant test even (“[A]n objectively 57, at 1926 113 S.Ct. suits”); Christian meritless allegedly be litigate cannot effort reasonable Ctr., Funeral Inc. v. Mich. Mem’l Cultural intent.”); id. subjective regardless sham 772, Ass’n, n. F.Supp. Dirs. (“We 59-60, [earlier] 113 S.Ct. (“[T]he (E.D.Mich.1998) cir- courts this plain- an dispelled the notion [of similar issues have confronted cuit that showing merely by a sham prove tiff could where PRE exists exception whether to de- ‘purposes were competitor’s that its multiple lawsuits] initiated the defendant market entry into the plaintiffs] lay [the narrowly.” so] to read [PRE have declined meaningful access deny it a and even to omitted)). (citation ... administrative appropriate ” (second altera- and third fora.’ animating legislative concern I appreciate original) (quoting Columbia appeals an antitrust tions other courts Adver., Inc., 499 U.S. Outdoor success a-small Omni fortuitous defendant’s L.Ed.2d not automatical- lawsuits should number of reason, some (1991))). Perhaps for anti- from the the defendant ly immunize
201 approach an similar to that a test applying argument courts where the supporting the adoption has not been properly advanced Judge Judge of Ambro and Fuentes have being and the test applied in circum- objec- preserved showing the need for beyond stances recognized by those other tive baselessness of the defendant’s action courts that adopted the test abandon- for prerequisite establishing the sham ing objective component of PRE. I See, e.g., Hy- In re Terazosin exception. therefore would Realty hold that 3201 can- Litig., drochloride Antitrust 335 not circumvent a Noerr-Pennington im- (S.D.Fla.2004) (re- 1336, F.Supp.2d 1367 munity showing defense without first jecting litigation claim of sham legal challenges defendants’ objec- were lawsuits, individually, “none can be tively baseless.4 baseless”); Gen- objectively considered Probe, Corp., Inc. v. Amoco F.Supp. 926 PRE Application B. to Present Case (S.D.Cal.1996) (“[U]nder 948, 959 either I now turn question of whether the PRE or the test, USS-POSCO [the 3201 can show that defendants’ ac- against claims plaintiffs] [the defendants] tivities were objectively baseless. I initial- objective must demonstrate baseless- ly point out that 3201 arguably has ness.”). issue, waived this which is distinct from I questions regard-
When
consider these
question
apply
whether to
the alter-
ing
legal support
abandoning
require objective
native test that does not
objective
require-
threshold
baselessness
baselessness, by
adequately arguing
ment, I
acquiesce
adoption
cannot
in the
appeal.
Realty’s
on
3201
supplemental re-
644,
agree
(Blackmun, J.,
Judge
Ambro and
202
(“[Wjhen
n.
the antitrust
S.Ct. at 1928
5
premise that the
from the
ply brief starts
litiga-
underlying
has lost
but does
defendant
applies
to PRE
test
alternative
tion,
the understanda-
a court must ‘resist
challenges
legal
defendants’
not assert that
in
hoc rea-
basis,
engage
post
temptation
ble
reasonable
objectively
lacked
ultimately
concluding’ that an
soning by
did
that defendants
briefly suggests
only
unrea-
must have been
unsuccessful ‘action
these chal
standing
bring
have
” (quoting
or without foundation.’
otherwise
sonable
challenges
or that
lenges
421-22,
at
98
See,
Christiansburg, 434 U.S.
Wyeth &
e.g., John
merit.
lacked
(re-
700)); Herr, 274
at 119
at
F.3d
119 F.3d S.Ct.
Corp.,
Int’l
v. CIGNA
Bro. Ltd.
Cir.1997)
litigation
(3d
plaintiffs claim sham
jecting
1070, 1076
(“[Ajrguments
n. 6
actions dem-
underlying
in
...,
opinions
where
squarely
but not
passing
in
raised
analyzed relevant is-
waived.”).
that courts
onstrated
Never
are considered
argued,
did
and some detail” and
sues “with care
Realty the benefit
theless,
give
I
3201
will
“frivolous”);
Scrap
Balt.
not consider them
arguments
and consider the
of the doubt
Co.,
394,
Joseph
v. David J.
objectively Corp.
actions were
that defendants’
Cir.2001)
(4th
(rejecting antitrust
400
sup
it alluded in its
to which
baselessness
litigation notwith-
claim of sham
Realty simply plaintiff’s
brief. 3201
plemental reply
that state court had dismissed
standing
objective baselessness
meet
cannot
standing).
underlying suit for lack of
recognized.
PRE
standard
fails at least to
complaint
Where
that a rea-
Realty has not shown
3201
petition
fact on a sham
question
raise
would
litigant Village’s position
in
sonable
issue,
may reject the claim
ing
a court
have a real-
that it did not
perceived
have
PRE,
to dismiss. See
a motion
granting
establishing standing
possibility
istic
(“Where,
63,
at 1930
at
508 U.S.
contrary, the
actions. To the
the relevant
here,
dispute
predi
no
over the
as
there is
Jersey Superior Court’s decision
New
underlying legal proceed
facts of the
cate
writs action demonstrates
prerogative
as
may
probable cause
ing, a court
decide
per-
could have
litigant
that a reasonable
law.”);
Bedell, 263 F.3d
AD.
a matter of
In
in that case.
possibility
ceived such
under Fed.
(affirming
241
dismissal
cited several cases be-
particular, Village
12(b)(6)
claims based
of antitrust
R.Civ.P.
support
of its claim
fore that court
doctrine).
Noerr-Pennington
.
as a
based on its status
standing
it had
the court
taxpayer.
example,
For
chal-
local
legal
that defendants’
arguing
cases that
baseless,
had stated
one of those
objectively
3201 Re-
lenges were
“[tjhere
support
proposi-
for the
they lacked
is some
contends that
alty primarily
standing
any
taxpayer
local
has
challenges.
tion that
they made these
standing when
al-
object
application,
to a variance
points
support,
For
clearly been
question
has not
Jersey Superior
though
decisions of
New
Inc. v.
Supermarket,
Jersey
resolved.” Vill.
Department
the New
Court and
Inc.,
(“NJDEP”)
269 N.J.Su
Supermarkets,
Mayfair
re-
Protection
Environmental
(N.J.Su
224, 634 A.2d
Village
per.
lacked
concluding
spectively
Div.1993) (citing Booth v. Bd.
per.Ct. Law
writs action and
prerogative
in its
(“FHA”)
Rockaway Twp., 50 N.J.
Adjustment
chal-
permit
hazard area
flood
(1967)).
Supe
noted,
A.2d
already
But as
lenges.
ultimately decided this issue
rior Court
underlying
of an
action
ultimate failure
“[ijn
of the unset
Village,
light
but
objective
against
its
baseless-
does not establish
law,”
Village had
PRE,
of the
n.
113 tled condition
reached this I we though believe defendants raise ironical even arguments other District judgment order District Court’s should affirm support of the. Court, on- which my view on issue dismissing complaint.5 case is a factor lead- would not decide the AND MY II. AMBRO’S JUDGE Indeed, only if I stated its reversal. ing to THE DIS- THAT AGREEMENT issue, Noerr-Pennington my on the views THE ENTERED TRICT COURT affirming we would be then for certain MAN- JUDGMENT CORRECT surely would Judge Ambro AN AFFIRMANCE. DATES seen himself as bound opinion, of this the outset As I stated But I they if alone. Fuentes’s views stood that the District agree and I Judge Ambro standing because courts position took a *39 complaint. dismissed correctly Court if decide whether usually always this conclusion be- reaches Judge Ambro they consider before plaintiff standing has Realty did not that 3201 cause he believes of a case. the merits necessary to standing the antitrust my place Judge to tell Although it is not action, I and do so because bring ,1 this vote, how and on issues Ambro what un- were immune believe defendants a mul- express my view that write here doctrine. A Noerr-Pennington der the reach the result panel should timember might think is obvi- observer reasonable views of independent that follows from the consequence of inescapable ous that willingness Judge Ambro’s its members. affirm the is we must agreement this Fuentes-Greenberg to be bound dismissing the judgment Court’s District standing majority’s position Judge avoids this But Ambro complaint. standing on the trumps his own conclusion himself as “bound by regarding outcome longstanding issue and runs counter majority’s [Judge Fuentes’s by the the federal widespread practice on antitrust Greenberg’s] opinion Judge appeals counting judges’ views courts of disagreement with standing despite [his] and not as to individual as to outcome 11, it,” application an typescript Ambro have criti- Although issues. some scholars He there- of stare decisis. principle of the critics and practice, this prevailing cized what should be his effectively switches fore acknowledge accep- its proponents alike of the Court’s vote from an affirmance David S. majority among tance See As a result a courts. order to a reversal. Cohen, Voting Para- The Precedent-Based consisting Judge Fuentes panel (2010)(“[T]he dox, 183, 222 90 B.U. L.Rev. announce the Court’s Judge Ambro outcome currently uses following shifting [Supreme] Court based on the judgment (1) result, as it votes on voting to reach a to individual issues: majorities as write their outcome and then the Justices my view that 3201 Judge Fuentes’s and (2) outcome.”); Lewis support opinions Realty has antitrust Sager, G. A. Kornhauser & Judge Ambro’s view Lawrence Judge Fuentes’s and Adjudication in Col- Many: and the Realty’s overcomes a One complaint that 3201 2015, Realty's property 10, clearing Realty’s ons work on 3201 September 3201 attor- 5. On its pursuant ground that obtained on the 3201 neys a letter attachments filed my permit by To the best of indicating wetland fraud. R.App. that Vil- Fed. P. 28® 12, so knowledge not been resolved August this case has lage's operating officer on chief 2015, I do not know take it into complaint Superior Court I do not account in the filed objectively baseless. seeking injunction stopping if the suit is Jersey of New
205
(1993)
Blunt,
Courts,
(affirming
L.Rev.
31
tally of votes
Fulminante,
279, 313-14, 111
499 U.S.
a v.
logically produce
would
by opinion
solved
(1991)
1246, 1267,
209
(3d
Inc.,
Inn,
may
Square
so
cases). Indeed,
voting paradox
the
Cir.1992).
District
did
Though the
Court
opinions
court
appellate
appear
seldom
Noerr-Pennington
issue
not address the
majority
judges in
no need to do so because 3201
as it had
reveal
their
do not
“typically
outcome
that it
not convince
Court
did
they
not need
that
‘do
on issues
views
defendants ad-
still
standing,
had
outcome.
for” that
in order to vote
reach’
that
so that
the defense in
Court
vanced
Against
the Tide-
Rowing
Salop,
&Post
Noerr-Pennington immunity
the claim of
water,
at 748.
supra,
prop-
preserved and thus defendants
me to tell
surely is not for
Again, it
on
Accord-
erly
appeal.
could raise it
this
Yet I cannot
how to vote.
judge
another
equally
rule
an
divid-
ingly, the usual
that
not
would
be
being aware
there
help
to an affirmance
appellate
ed
court leads
if
had
Judge
here
Ambro
voting paradox
judgment
apply.
would
of the trial court’s
concluding that the
after
no further
gone
if
Re-
Judge Ambro
contends
complaint
of the
dismissal
District Court’s
on the
issue
alty
prevailed
had
ground
affirmed on
should be
if the defendants
the District Court and
standing.
Realty lacks antitrust
by the
appealing
not barred from
were
had
Judge
that if
Ambro
is no doubt
There
appealed,
rule
had
we
judgment
final
affirm
we would
approach,
this
followed
standing ap-
affirmed on the
would have
my independent reason-
on his and
based
prevailed
Then if défendants
on
peal.
(“In
Hartnett,
at 142-43
supra,
ing. See
in the District
Noerr-Pennington
issue
Fulminante],
only
not
did
Gas
[Union
Realty appealed
we would
fail to
ultimately entered
judgment
Thus,
would
have reversed.
Justices believed
majority
how a
reflect
majority
of the
though
win the case even
decided, but
should have been
the case
Judge
panel thought it should lose. While
worse,
opinions
unnecessary statements
point
this
this
may
Ambro
be
correct
That
judgment in the case....
altered the
happen.
hypothetical set of facts did
”).
welcome....
we
is not
result
should
Furthermore,
hypothetical
a different
fact,
gone
had
no
Judge
if
Ambro
Sup-
voting.
of outcome
supports the use
that the District
concluding
after
further
decided
appeal
been
pose
had
be-
should be affirmed
judgment
Court’s
judge,
If I
been that
single judge.
had
standing,
Realty lacks antitrust
cause
be
order would
then the District Court’s
regardless of
inescapably would
we
affirm
had been that
Judge
If
Ambro
affirmed.
voting.
or issue
we used outcome
whether
or-
again
District Court’s
judge, once
voting,
then two
we used outcome
If
Judge
if
Only
der would be affirmed.
I,
be vot-
Judge Ambro and would
judges,
judge, would
Fuentes had been that
voting,
affirm.
If we used issue
ing to
reversed.
order have been
District Court’s
Noerr-Pennington
the vote on
then
circumstance
why
understand
I cannot
divided,
equally
would
been
issue
should lead to
panel
are all on
that we
the defense
rejecting
Fuentes
would
that which
a different result
than
accepting it.
immunity and with me
major-
individually by a
have been reached
split is that
consequence even
ity
panel.
of dismissal
District Court’s
order
tension
voting “is in considerable
equally
Issue
have been affirmed
would
emphasis, rooted
the traditional
Shipping Co. v. with
vote.
Exxon
divided
III,
as case deciders.”
471, 484,
Article
on courts
Baker, 554
long
has
Hartnett,
n. 58. As
(2008);
supra, at 134
In re Mkt.
Court stated there remains law and expressed principle
no court has better recognized.
that it Inasmuch as two of the panel agree
three members of the that the correct,
judgment though for different
reasons, surely we are constrained to af-
firm.6 Because the Court does not reach
this result and because I believe de- Noerr-Pennington
fendants have a de-
fense, I respectfully dissent from the out- ' come the though Court reaches even
agree Fuentes on his resolu-
tion issue. CHAVARRIAGA, Appellant
Alexandra
State of NEW JERSEY DEPARTMEN T CORRECTIONS; Attorney
OF Gener Jersey; Jersey
al New New Commis Corrections;
sioner of Corrections
Sergeant Brown; 1; John Doe # John #2; Doe; Wair;
Doe Jane Marcus
Philip Sheppard; 3; John #Doe John #4;
Doe Various Unknown Correc Employees Assigned Spe
tions Investigations
cial Division of the De
partment Of Corrections. view, (1) two, my (2) this case can be resolved one and one make two out of making simple mathematical calculations that majority. three is a require super computer: do not that we use a notes Leahy, 96 F.3d at ed litigations the use of sham 8. See ("Simply garding Arbitrator’s Decision at whether or not the FLSA has been stated, the CBAdoes not violated.”). authorize an arbitra- claims.”; tor to resolve FLSA "I have not reviewed or considered the FLSA in render- 9. See id. at 6. Award, ing express opinion and I no re-