2008-723, Green Mountain Realty Corporation v. The Fifth Estate Tower, LLC & a.

No. 2008-723

Carroll

Stephen M. Hoersting

Donahue Tucker & Ciandella PLLC Tierney on the brief), for Center for Competitive Politics, as amicus curiae. D'Amante Couser Steiner Pellerin, P.A. Wadleigh, Starr & Peters, PLLC, of Manchester (Dean B. Eggert and Michael J.

Burlington, Vermont (Thomas P. Simon on the brief), for the defendants. on the brief), and McCormick, Fitzpatrick, Kasper & Burchard, P.C., of and orally), Haughey, Philpot & Laurent, P.A., of Laconia (William Philpot, Jr. on the brief), Orr & Reno, P.A., of Concord (William L. Chapman on the brief

THE SUPREME COURT OF NEW HAMPSHIRE Keriann Roman on the brief, and Robert D. Ciandella orally), for the plaintiff.

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 to press. Errors may be reported by E-mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as construct a radio communications tower on town property known as Poor Farm I. Background p. 2 enter into long-term leases with Green Mountain, which would enable it to asked whether town voters would authorize the town’s board of selectmen to special town meeting involving two warrant articles. The warrant articles electorate of the town of Wolfeboro in connection with a September 2005 misleading and/or false. The postcards were distributed to the general and distributed, which included statements that Green Mountain claims were This case arises out of a series of postcards that Fifth Estate designed, printed Estate both site, construct, own and operate personal wireless service facilities. 2 The record evidences the following facts. Green Mountain and Fifth Act (CPA), see on its claim that Fifth Estate violated the New Hampshire Consumer Protection in favor of the plaintiff, Green Mountain Realty Corporation (Green Mountain), Estate Tower, LLC (collectively, Fifth Estate), appeal a $6.7 million jury verdict Williams, individually and in his official capacity as manager of The Fifth DALIANIS, J. The defendants, The Fifth Estate Tower, LLC and Jay

St. Hilaire & St. Hilaire, PLLC reverse. motions for directed verdict and judgment notwithstanding verdict (JNOV). We Court (Fitzgerald, J.) erred by denying its summary judgment motion and

RSA ch. 358-A (2009). Fifth Estate argues that the Superior

Ben Robbins

Barbara Keshen curiae. Thomas Jefferson Center for the Protection of Free Expression, as amicus and Robert M. O’Neil & a., of Charlottesville, Virginia, on the brief, for The

on the brief), for New England Legal Foundation, as amicus curiae. brief, and Devine, Millimet & Branch, P.A., of Manchester (Matthew R. Johnson

Union, as amicus curiae.

Realtors, as amicus curiae. and Joshua M. Wyatt on the brief), for The New Hampshire Association of Devine, Millimet & Branch, P.A., of Manchester (Matthew R. Johnson p. 3 II. Discussion

motion. This appeal followed. reasons articulated in its order denying Fifth Estate’s summary judgment directed verdict and JNOV. The trial court rejected the arguments for the proceeded to trial. Fifth Estate raised these same arguments in its motions for New Hampshire Constitution. The trial court denied the motion, and the claim by the First Amendment to the Federal Constitution and Part I, Article 22 of the a commercial one, and because its statements were political speech protected not apply to its conduct because it took place in a political context, rather than Fifth Estate moved for summary judgment, arguing that the CPA does

practices.” “false and misleading statements” constituted “unfair and deceptive acts or other causes of action, a claim that Fifth Estate violated the CPA because its January 2006, Green Mountain filed a writ against Fifth Estate alleging, among Ultimately, the town electorate rejected both warrant articles. In

$600,000 over their respective terms. illnesses; and (5) the leases would cost town taxpayers between $200,000 and town residents to suffer from cancer, Alzheimer’s disease and other serious town; (4) Green Mountain’s personal wireless service facilities would cause unnecessary because Fifth Estate provided “complete wireless coverage” to the than $1 million from town taxpayers; (3) the tower on Poor Farm Hill was skyline; (2) for the water tank site alone, Green Mountain would take more the tower to be erected on Poor Farm Hill would destroy the town’s picturesque radio announcements and mass mailings that included statements that: (1) the postcards, Fifth Estate ran a series of advertisements, newspaper pieces, In the months preceding the special town meeting, in addition to sending in a business setting. See intend the CPA to regulate conduct occurring in a political setting, rather than applied to Fifth Estate’s conduct. It contends that the legislature did not Fifth Estate argues that the trial court erred when it ruled that the CPA

the warrant articles. lake from the town docks “[a]nd get complete cell coverage” by voting “[n]o” on cancellable.” The postcards also told voters that they could save the view of the unnecessary, and to the proposed leases as “no-bid, 30-year, [and] nonreferred to the proposed communications tower as an “[e]yesore” and services” as it “already [had] existing structures to handle both.” The postcards because the town did not need “to get better cellular service or emergency The postcards urged town voters to vote against the two warrant articles

existing water tank. Hill and install radio communications antennas at the site of the town’s p. 4 A. CPA 4

Simpson v. Young unfair methods of competition or unfair or deceptive acts or practices. commodity, or thing of value wherever situate.” RSA 358-A:1, II. The terms categories of unlawful acts that the legislature has determined constitute property, tangible or intangible, real, personal or mixed, and any other article, A:2. After this general proscription, the CPA lists fifteen representative including “advertising, offering for sale, sale, or distribution of any services and practice in the conduct of any trade or commerce within this state.” RSA 358- another,” RSA 358-A:2, VII. The CPA defines “[t]rade” and “commerce” as to use any unfair method of competition or any unfair or deceptive act or services are of a particular standard, quality, or grade, . . . if they are of The CPA provides, in relevant part: “It shall be unlawful for any person that they do not have,” RSA 358-A:2, V, and “[r]epresenting that goods or that goods or services have . . . characteristics, . . . uses, benefits, or quantities v. Davey, 153 N.H. 764, 781 (2006). Other categories include “[r]epresenting misleading representation of fact.” RSA 358-A:2, VIII; see Mortgage Specialists involves “[d]isparaging the goods, services, or business of another by false or

, 153 N.H. 471, 476 (2006). One category of unlawful acts

involving the same subject matter). whole. LaChance v. U.S. Smokeless Tobacco Co. federal courts view the Federal Trade Commission and Sherman Acts as legislature’s intent as expressed in the words of the statute considered as a decided under Sherman Antitrust Act to construe the CPA because lower In matters of statutory interpretation, we are the final arbiters of the 129 N.H. 306, 310 (1987) (Thayer, J., concurring) (it is proper to consult cases State v. Moran, 151 N.H. 450, 452-53 (2004); see also Rousseau v. Eshleman, by the Federal Trade Commission and the federal courts.” RSA 358-A:13; see and construction given Section 5(a)(1) of the Federal Trade Commission Act . . . CPA, the legislature has directed that we “may be guided by the interpretation language that the legislature did not see fit to include. Id. To interpret the as written and will not consider what the legislature might have said or add meaning to the words used. Id. We interpret legislative intent from the statute When examining the language of a statute, we ascribe the plain and ordinary

Laramie v. Stone, 160 N.H. ___, ___, 999 A.2d 262, 276 (2010). must interpret the CPA, which is a question of law that we review de novo. See campaign activities”), review denied (Cal. 1986). To address this argument, we held that the laws regulating business practices do not apply to political Federal Trade Commission Act and the Sherman Antitrust Act have uniformly 223 Cal. Rptr. 3 p. 5 57, 360 (Ct. App.) (noting that “[f]ederal cases under the large), cert. denied, 419 U.S. 834 (1974); O’Connor v. Superior Court (Wyman), opponents to state anti-litter measure, which were directed to electorate at (Federal Trade Commission Act did not apply to campaign activities of 5 Under the Noerr-Pennington

that the railroads were entitled to immunity from antitrust liability for their truckers as competitors for the long-distance freight business,” the court ruled though the “sole purpose” of the railroads’ campaign “was to destroy the Court Trial Lawyers Assn., 493 U.S. 411, 424 (1990) (quotation omitted). Even affected by any anticompetitive purpose it may have had.” FTC v. Superior directed toward obtaining governmental action, its legality was not at all Clause, the Court noted that at least insofar as the railroads’ campaign was “Interpreting the Sherman Act in light of the First Amendment’s Petition existing between the truckers and their customers.” Noerr, 36 p. 5 5 U.S. at 129. distaste for truckers among the general public, and to impair the relationships of laws that were damaging to truckers, but also “to create an atmosphere of The railroads’ publicity was designed specifically not only to foster the adoption Aetna Cas., 985 F.2d 1138, 1142 (1st Cir.), cert. denied, 510 U.S. 818 (1993). Sherman Act. Noerr, 365 U.S. at 129-45; see Sandy River Nursing Care v. truckers with whom they competed, without incurring liability under the general electorate designed to secure legislation that was destructive to the associate for the purpose of waging a publicity campaign directed at the 492, 499 (1988). In Noerr, the Court held that the defendant railroads could antitrust liability.” Allied Tube & Conduit Corp. v. Indian Head, Inc., 486 U.S. monopolize trade by petitioning government officials are protected from

1092 (9th Cir. 2000) (same). U.S. 90 p. 5 5 (2001); Manistee Town Center v. City of Glendale In reaching this conclusion, we rely upon the Noerr-Pennington, 227 F.3d 1090, Pennington doctrine is no longer limited to antitrust context), cert. denied, 532 Fleet, Inc. v. Alexander B. Noerr-Pennington Doctrine, 234 F.3d 852, 859 (5th Cir. 2000) (noting that Noerr- California Unfair Competition Law), review denied (Cal. 2008). See Bayou Rptr. 3d 501, 513 (Ct. App.), (applying doctrine to claim brought under trade practices acts, see, e.g., People ex rel. Gallegos v. Pacific Lumber, 70 Cal. meaning of the CPA. See Rodgers, 492 F.2d at 229-32, as well as to those brought under state unfair (1965), but since has been applied to Federal Trade Commission Act cases, see Estate’s conduct constituted an unfair or deceptive practice, within the Motors For the purposes of this appeal, we assume, without deciding, that Fifth, 365 U.S. 127 (1961); Mine Workers v. Pennington, 381 U.S. 657 Sherman Antitrust Act (Sherman Act) cases, see Eastern R. Conf. v. Noerr which was originally developed by the United States Supreme Court in Federal

See Rodgers, 492 F.2d at 229-32. does not apply because Fifth Estate’s conduct occurred in a political setting.

this state.” Id. also “include any trade or commerce directly or indirectly affecting the people of p. 6 Noerr-Pennington At least one federal court has applied the Noerr-Pennington The Federal Trade Commission ruled that the opponents were entitled to

observed that the proscriptions of the Federal Trade Commission Act, “like the

immunity for their alleged actions. Id. at 229-30. It

Commission Act. Id. (quotation omitted). that constituted unfair and deceptive trade practices” under the Federal Trade vertical and horizontal agreements, to make price representations to the public petitioner alleged that opponents to the measure had “combined in both containers not having a refund value of at least five cents. Id. at 229. The adopted, that measure would have forbidden the sale of beer and soft drinks in actions taken by opponents to an anti-litter measure. Id. at 228-29. If involved a petition for declaratory judgment and injunctive relief challenging Federal Trade Commission Act case. See Rodgers, 492 F.2d at 230. Rodgers

ordinance would exclude company’s competitor). immunity to company’s effort to persuade city to adopt ordinance, even though Outdoor Advertising, Inc., 499 U.S. 365, 373 (1991) (granting p. 6 Noerr-Pennington F. Supp. 2d 173, 189 (S.D.N.Y. 2006) (citing cases); see Columbia v. Omni efforts[ ] and court litigation.” Doron Precision Systems, Inc. v. FAAC, Inc., 423 activities in addition to traditional lobbying, including . . . sales and marketing Additionally, it has granted Noerr-Pennington immunity “to a wide range of see also Davric Maine Corp. v. Rancourt, 216 F.3d 143, 147 (1st Cir. 2000). See California Mot. Transport v. Trucking Unlimited, 404 U.S. 508, 510 (1972); Pennington doctrine to petitions before administrative agencies and courts.

compete in the market. Id In Pennington. at 660. as to make it difficult for small coal operators, such as the complainant, to for employees of contractors selling coal to the Tennessee Valley Authority so the federal Secretary of Labor to establish unreasonably high minimum wages Among other things, the large coal operators and coal miners’ union petitioned between certain large coal operators and the coal miners’ union. Id. at 659. Pennington, 381 U.S. at 670. There, the alleged unlawful conspiracy was alone or as part of a broader scheme itself violative of the Sherman Act.” intended to eliminate competition. Such conduct is not illegal, either standing efforts to influence public officials do not violate the antitrust laws even though mining company against the coal miners’ union, the Court reiterated: “Joint

upon mere attempts to influence the passage or enforcement of laws.”). Noerr, 365 U.S. at 135 (“[N]o violation of the [Sherman] Act can be predicated deceptive methods.” Allied Tube & Conduit Corp., 486 U.S. at 499-500; see enjoys antitrust immunity even when the campaign employs unethical and “[a] publicity campaign directed at the general public, seeking legislation . . . conduct. Noerr, 365 U.S. at 138. Thus, under the p. 6 Noerr-Pennington doctrine, p. 7 For instance, in Keep Thomson, Etc.

61. Relying upon Rodgers, the court concluded that the proscriptions of the to own the rights to the song. Keep Thomson, Etc., 457 F. Supp. at 958-59, even though a committee to advance the election of another candidate claimed used a song in a political advertisement to support the incumbent’s candidacy to a claim that a committee seeking reelection of the incumbent governor had the District of New Hampshire ruled that Noerr-Pennington immunity applied

efforts to obtain zoning relief). A.2d 1234, 1237 (R.I. 1996) (applying Noerr-Pennington doctrine to developer’s directed at local zoning board); Cove Rd. Dev. v. W. Cranston Indus. Park, 674 App. Ct. 2000) (Noerr-Pennington doctrine applies to petitioning activity Unfair Competition Law); cf. Zeller v. Consolini, 758 A.2d 376, 378, 382 (Conn. 70 Cal. Rptr. 3d at 513 (applying doctrine to claim brought under California Supp. 957, 961 (D.N.H. 1978) (applying doctrine to CPA claim); Pacific Lumber, Practices Act case); Keep Thomson, Etc. v. Citizens for Gallen Com., 457 F. F.2d 98 (2d Cir. 1983) (applying Noerr-Pennington The Federal Trade Commission also has applied the Noerr-Pennington to Connecticut Unfair Trade trade practices acts. See Suburban Restoration Co., Inc. v. Acmat Corp., 700 applied the Noerr-Pennington doctrine to cases brought under state unfair emissions research results). Additionally, several state and federal courts have Unocal lacked or would not assert patent rights concerning automobile misrepresentations to the California Air Resources Board and competitors that their arguments to the electorate at large.” Id (Unocal) violated Federal Trade Commission Act through knowing and willful supporters of [the] [i]nitiative . . . and its opponents had equal right to submit The Ninth Circuit Court of Appeals affirmed, reasoning: “Both of Noerr-Pennington immunity to claim that Union Oil Company of California http://www.ftc.gov/os/decisions/docs/volume138.pdf (discussing application of California, 138 F.T.C. 1, 17-78 (2004), doctrine to Federal Trade Commission Act cases. See, e.g., Union Oil Company

to Noerr-Pennington immunity. Id. officials tabulating the votes, the court ruled that the opponents were entitled that the measure’s opponents had interfered with voters at the polls or with

with legislative process.” Id. at 230 (quotation omitted). communication in connection with political activity, particularly in connection indicated due to the overriding public interest in preservation of uninhibited concluded: “[I]t is our view that actionable violation of . . . the FTC Act is not they made them to influence legislation. Id. at 229. The commission made their alleged misrepresentations willfully and with ill motive, because entitled to Noerr-Pennington immunity, the commission ruled, even if they the political arena.” Id. at 230 (quotation omitted). The opponents were proscriptions of the Sherman Act, are tailored for the business world, not for p. 8 C. Application of Noerr-Pennington Immunity to Defendants

Noerr-Pennington We next address whether Fifth Estate’s conduct in this case is entitled to 8

civic groups,” when, in fact, in Noerr, it was paid for by the railroads and, in made to appear as spontaneously expressed views of independent persons and Additionally, as in Noerr, “the publicity matter circulated in the campaign was to eliminate Green Mountain as a competitor. See Noerr, 365 U.S. at 138. purpose of Fifth Estate’s publicity campaign was anti-competitive -- here, it is directed at the general electorate. Like the campaign in Noerr, the alleged this case, as in Noerr, 365 U.S. at 129, at issue is a publicity campaign

immunity. The facts of this case mirror those in Noerr. In

claims brought under the CPA. Commission Act, so too do we hold the Noerr-Pennington doctrine applies to Pennington doctrine applies to claims brought under the Federal Trade Rodgers court and the Federal Trade Commission have ruled that the Noerr- Brzica v. Trustees of Dartmouth College, 147 N.H. 443, 451 (2002). Just as the commodity or service as part of the day-to-day business of the defendant.” only if it occurs in a business setting involving the advertising or sale of a We find the reasoning of these cases persuasive and hold that the Noerr- 358-A:2. “Fraudulent or deceptive conduct can be actionable under the [CPA] deceptive acts “in the conduct of any trade or commerce” in the state. RSA political arena. It proscribes unfair methods of competition or unfair or Federal Trade Commission Act, is tailored for the business arena, not the See RSA 358-A:13; see also Moran, 151 N.H. at 452-53. The CPA, like the Trade Commission Act by the Federal Trade Commission and federal courts. legislature, has directed that we may rely upon the interpretation of the Federal Motors Corp., 138 N.H. 532, 539 (1994). Our legislature, like the Connecticut analogous to the Federal Trade Commission Act. See Roberts v. General the Connecticut statute at issue in Suburban Restoration Co., Inc., is Pennington doctrine applies to claims brought under the CPA. The CPA, like

The Second Circuit Court of Appeals used similar logic in Suburban tortious interference with business expectancy. Id. at 102. either a claim under the Connecticut statute or a common law claim for was entitled to Noerr-Pennington immunity, it could not form the basis of because the activity complained of -- the filing of a single non-sham lawsuit -- Suburban Restoration Co., Inc., 700 F.2d at 101-02. The court ruled that statute directs courts to be guided by federal interpretations of the federal act. expressly modeled after the Federal Trade Commission Act and because the apply the Noerr-Pennington doctrine to the Connecticut statute because it was Trade Practices Act. The court reasoned that Connecticut courts would likely Restoration Co., Inc., 700 F.2d at 101-02, to interpret the Connecticut Unfair

political arena. Id. at p. 9 961. CPA, like those of the Federal Trade Commission Act, were not intended for the 9

government Policy makers. . . . By ‘enforcement of laws’ we understand some The First Circuit Court of Appeals applied this exception in Whitten “The entire thrust of Noerr is aimed at insuring uninhibited access to influence the passage or enforcement of laws.” Id. at 32. The court explained: architect hired by a local school board hardly rise to the dignity of an effort to impose his product specifications by guile, falsity, and threats on a harried 1. “Commercial” Exception unavailable to the company in part because “the efforts of an industry leader to manufacturers. Id. The court ruled that Noerr-Pennington immunity was the public swimming pool industry, with the intent to exclude other combined with dealers and others to require the use of its own specifications in bidding procedures. Whitten, 424 F.2d at 27. One of the manufacturers competing to sell their products to public bodies acting under competitive which involved manufacturers of prefabricated pipeless pool gutters that were

Green Mountain contends that Fifth Estate is not entitled to Noerr- Pennington”), cert. denied, 462 U.S. 1133 (1 p. 9 983). Cir. 1982) (holding that “[t]here is no commercial exception to Noerr- Pennington”); In re Airport Car Rental Antitrust Litigation, 693 F.2d 84, 88 (9th Cir. 1985) (noting that “there should be no commercial exception to Noerr- Greenwood Utilities v. Mississippi Power Co., 751 F.2d 1484, 1505 n.14 (5th F.2d 25, 31-34 (1st Cir.), cert. denied, 400 U.S. 850 (1970). But see 1047 (1972); George R. Whitten, Jr., Inc. v. Paddock Pool Builders, Inc., 424 Football, Inc., 444 F.2d 931, 940-42 (D.C. Cir. 1971), cert. denied, 404 U.S. some courts, including the First Circuit, have recognized. See of legislation conferred upon it, a town meeting is a legislative body.” New Hecht v. Pro- Pennington of government, and “[i]t is well understood that, within the limits of the power immunity because of the “commercial” exception thereto, which Green Mountain acknowledges, the town of Wolfeboro has a town meeting form town meeting at issue did not involve the passage or enforcement of laws. As We are not persuaded by Green Mountain’s assertion that the special

legislation. the passage of warrant articles, which, in a town meeting, are the equivalent of sovereigns, and their will, when duly expressed, is supreme.”). At issue here is N.H. 556, 557 (18 p. 9 99) (“In New England town meetings the voters are the London v. Davis, 73 N.H. 72, 74 (1904); see Attorney-General v. Folsom, 69

Tube & Conduit Corp., 486 U.S. at 4 p. 9 99-500. was to eliminate Green Mountain as a competitor. Id. at 135, 138; see Allied violate the CPA, even if, as Green Mountain alleges, Fifth Estate’s sole motive “mere attempts to influence” the passage of the warrant articles does not laws” did not violate the Sherman Act, so too do we conclude that Fifth Estate’s railroad industry’s “mere attempts to influence the passage or enforcement of our case, by Fifth Estate. Id. at 130. Just as the Noerr court ruled that the p. 10 Id Id

salesmanship to fraudulent statements and threats. dealings with private consumers. monopolistically motivated and ran the gamut from high pressure

bid statutes should be subject to the same limitations as its effort directed at that professional and his public client was

Even if we assume that Whitten

the public media . . . for the purpose of influencing political decisions of the denied, 440 U.S. 945 (1979). The present case, by contrast, involves “access to Employment, Etc. v. WHDH Corp., 580 F.2d 9, 12 n.11 (1st Cir. 1978), cert. products to public bodies under competitive bidding procedures.” Council for change is secured, [its] dealings with officials who administer the Whitten has been entrusted to a hired professional, and where the selling “involved direct commercial competitors attempting to sell their it in construing the CPA, it is factually distinguishable from the instant case. where the initial responsibility for recommending specifications satisfy its own needs within a framework of competitive bidding, is still good law and that we would follow acting in a proprietary capacity, purchasing goods and services to It is unclear whether Whitten implicitly overruled or weakened by California Motor Transport.”). 989, 996 (S.D.N.Y. 1981) (Whitten “ha[s] been disapproved in this circuit, as 693 F.2d at 88; Bustop Shelters v. Convenience & Safety Corp., 521 F. Supp. implicitly overruled Whitten. See In re Airport Car Rental Antitrust Litigation, administrative agencies, see California Mot. Transport, 404 U.S. at 510, it Supreme Court expanded Noerr-Pennington immunity to petitions before immunity. Moreover, other courts have suggested that when the United States establish a government-as-market-participant exception to Noerr-Pennington to seek legislative change in this basic policy, . . . until such Supreme Court in Superior Court Trial Lawyers’ Assn. according to strictly economic criteria. [While the company] is free, 493 U.S. 411, did not disavowed its reasoning in Whitten when it observed that the United States Sandy River Nursing Care, 985 F.2d at 1143, the First Circuit may have

. at 29.

bidding, have decreed that government purchases will be made The state legislatures, by enacting statutes requiring public

unavailable when the government was: . at 33. Thus, the court ruled that Noerr-Pennington immunity was

The court further reasoned: decision about the best kind of weld to use in a swimming pool gutter.” Id. significant policy determination in the application of a statute, not a technical p. 11 Reversed

DUGGAN and CONBOY, JJ., concurred.

Estate’s campaign to defeat the warrant articles, “certainly cannot be To summarize, we hold that the Noerr-Pennington This exception is unavailable here. A successful effort, such as Fifth III. Conclusion

Estate’s conduct. motions for directed verdict and JNOV, it ruled that the CPA applied to Fifth court erred when, in denying Fifth Estate’s summary judgment motion and under that doctrine for its actions. Accordingly, we conclude that the trial claims brought under the CPA and that Fifth Estate is entitled to immunity

issue,” Davric Maine Corp., 216 F.3d at 148, the defeat of the warrant articles. that the defendants sought to benefit from the outcomes of the process at Omni Outdoor Advertising, Inc., 499 U.S. at 380. “In this case, it is apparent opposed to the outcome of that process -- as an anticompetitive weapon.” “encompasses situations in which persons use the governmental process -- as Davric Maine Corp., 216 F.3d at 148. Moreover, the exception only 2. “Sham” Exception, 486 U.S. at 502; see

2d at 189. aimed at securing government action. Doron Precision Systems, 423 F. Supp. government officials, as long as its conduct was part of a good faith campaign entitled to Noerr-Pennington immunity even if it pressured or lied to Professional Real Estate Investors entitled to Noerr-Pennington, 508 U.S. at 60. Thus, a defendant is Subjective intent, alone, is insufficient to establish the “sham” exception. To the extent that Green Mountain argues that Fifth Estate is not itself. See id. at 60-61; see also Davric Maine Corp., 216 F.3d at 147. intended only to burden a rival with the governmental decision-making process resort to governmental process is both objectively baseless and subjectively (quotation and ellipsis omitted). The “sham” exception applies when a party’s Investors, Inc. v. Columbia Pictures Industries, Inc., 508 U.S. 49, 56 (1993) with the business relationships of a competitor.” Professional Real Estate governmental action, [are] a mere sham to cover an attempt to interfere directly from “sham” activities, which although “ostensibly directed toward influencing doctrine, we disagree. The Noerr-Pennington doctrine withholds immunity

consumer. Here, it is not. general electorate.” Id. at 12. The government in Whitten was acting as a