Noerr-Pennington Immunizes Hospital From Antitrust Liability For Lobbying Campaign Against Competitor

The Noerr-Pennington doctrine, which protects the First Amendment right to petition the government, has traditionally been used to shield lobbying activity from antitrust liability, even when such activity’s intent is to harm a competitor. In a recent decision, the Seventh Circuit affirmed a district court’s dismissal of an antitrust suit, holding that the Noerr Pennington doctrine protected the defendant hospital’s deceitful and objectionable tactics employed in lobbying to prevent the construction of a competing medical facility.

In Mercatus Group, LLC v. Lake Forest Hosp., No. 10-1665 (7th Cir. May 26, 2011) Plaintiff Mercatus Group, LLC (“Mercatus”) claimed that Defendant Lake Forest Hospital (the “Hospital”) violated Section 2 of the Sherman Act by encouraging the local licensing board to deny Mercatus permission to build a competing medical facility. The Seventh Circuit’s decision makes clear that, with very few exceptions not present in this case, the First Amendment considerations that underlie Noerr-Pennington will trump antitrust concerns even when the defendant’s tactics might otherwise be subject to criticism.

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