Veritext Corp. v. Bonin

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

VERITEXT CORP. CIVIL ACTION

VERSUS NO. 16-13903 C/W

17-9877

REFERS TO: 17-9877

PAUL A. BONIN, ET AL. SECTION: “B”(2)

ORDER & REASONS

I. NATURE OF MOTION AND RELIEF SOUGHT

Before the Court are: (1) defendant Louisiana Board of

Examiners of Certified Shorthand Reporters’ 1 (“CSR Board”) “Motion

to Dismiss Complaint Under Federal Rule of Civil Procedure

12(b)(6)” (Rec. Doc. 92); (2) defendant Louisiana Court Reporter’s

Association’s (“LCRA”) “Motion to Dismiss Complaint Under Federal

Rule of Civil Procedure 12(b)(6)” (Rec. Doc. 93); (3) defendant

CSR Board’s “Supplemental Memorandum in Support of Motion to

Dismiss Complaint Under Federal Rule of Civil Procedure 12(b)(6)”

(Rec. Doc. 94); (4) defendant LCRA’s “Supplemental Memorandum in

Support of Motion to Dismiss Complaint Under Federal Rule of Civil

Procedure 12(b)(6)” (Rec. Doc. 95)2; (5) plaintiff Esquire

1 Paul A. Bonin, Vincent P. Borello, Jr., Milton Donnegan, John H. Andressen,

Mary F. Dunn. Suzette Magee, Kimya M. Holmes, Elizabeth C. Methvin, and Laura

Putnam in their official capacities as members of the Louisiana Board of

Examiners of Certified Shorthand Reporters’ (collectively “The CSR Board”) and

John H. Andressen, Vincent P. Borello, Jr., Milton Donegan, Jr., Suzette Magee,

May F. Dunn, and Elizabeth C. Methvin, in their individual capacities as members

of the CSR Board.

2 Defendant LCRA has filed Rec. Doc. 95 as a “substitute” for their motion to

dismiss (Rec. Doc. 93) to focus on the remaining issues not decided by the Fifth

Deposition Solutions, LLC’s (“Esquire”) “Plaintiff Esquire

Deposition Solution’s Memorandum in Opposition to Motion to

Dismiss Complaint” (Rec. Doc. 96); (6) defendant CSR Board’s

“Memorandum in Reply to Plaintiff Esquire Deposition Solutions’

Opposition to Motion to Dismiss Complaint” (Rec. Doc. 103); and

(7) defendant LCRA’s “Reply Memorandum in Support of Motion to

Dismiss Complaint Under Federal Rule of Civil Procedure 12(b)

(6)” (Rec. Doc. 105).

For the reasons discussed below,

IT IS ORDERED that the motions to dismiss (Rec. Doc. 92 & Rec.

Doc. 93) are GRANTED, dismissing plaintiff Esquire’s

constitutional vagueness claims against defendants LCRA and the

CSR Board, and dismissing plaintff’s Sherman Antitrust Act claims

against defendant LCRA.

II. FACTS AND PROCEDURAL HISTORY

History of Consolidated Cases

The case at issue, Case No. 17-9877, has been consolidated

with Case No. 16-13903, with the latter being the master case. See

Rec. Doc. 75 in 17-9877. Therefore, a short background and

procedural history of each case is warranted to put this motion in

perspective.

Circuit Court of Appeals in Veritext v. Bonin, Et. Al, 901 F.3d 287 (5th Cir.

2018).

On September 29, 2017, plaintiff Esquire Deposition

Solutions, LLC (“Esquire”) filed its complaint alleging that

Louisiana Code of Civil Procedure Article 1434 (“Article 1434”)

was unconstitutionally vague, in violation of the Due Process

Clause, the Equal Protection Clause and the Dormant Commerce

Clause, and that defendants Louisiana Court Reporter’s Association

(“LCRA”) and the Louisiana Board of Examiners of Certified

Shorthand Reporter’s (“CSR Board”) actions violated the Sherman

Antitrust Act (“Sherman Act”). See Rec. Doc. 1; see also 15 U.S.C.

§ 1. Prior to Esquire’s complaint, plaintiff Veritext Corporation

filed a complaint against the CSR Board, alleging all claims

included above, except for the constitutional vagueness claim.3

See Rec. Doc. 4, 16-13903.

In Veritext v. Bonin, this Court granted defendant CSR Board’s

a motion to dismiss for failure to state a claim as to all claims

alleged by plaintiff Veritext. See Rec. Doc. 22; Rec. Doc. 44.

That order dismissed the constitutional claims, but the Sherman

Act claim was upheld and not dismissed. See Rec. Doc. 44 at 11.

After a subsequent motion for reconsideration filed by defendants

CSR Board, this Court dismissed plaintiff Veritext’s Sherman Act

Claim stating, “despite the Plaintiff’s adequately alleged facts,

the actors in the complaint do not fall under the purview of the

3 Plaintiff Vertitext Corporation filed its complaint on August 17, 2016, and

then amended the complaint on August 23, 2016.

Sherman Act” because the actions were taken by state

officers/agents and subject to Parker immunity. See Rec. Doc. 48;

Rec. Doc. 73. That judgment was appealed to the United States Fifth

Circuit Court of Appeals, who affirmed this Court’s judgment

regarding the constitutional claims and remanded the case

regarding the Sherman Act Claim. See Veritext Corp. v. Bonin, 901

F.3d 287 (5th Cir. 2018).

All parties agree that the decision of the Fifth Circuit is

final and binding on these consolidated actions. See Rec Doc. 96

at 2. Thus, the only remaining claim to be addressed in defendant

CSR Board’s motion for failure to state a claim is the claim that

Article 1434 is unconstitutionally vague, which was not addressed

in the Veritext opinion. See Rec. Doc. 94. Likewise, the only

claims to be addressed in defendant LCRA’s motion to dismiss for

failure to state a claim are for the constitutional vagueness of

Article 1434 and for the LCRA’s alleged violations of the Sherman

Act, which were not specifically addressed as to defendant LCRA by

the Fifth Circuit in Veritext. LCRA was not a party in that

appellate action. See Rec. Doc. 95; see also Veritext Corp., 901

F. 3d 287.

The subject motions to dismiss under Federal Rule of Civil

Procedure 12(b)(6) relate only to plaintiff Esquire Deposition

Solutions, LLC. (“Esquire”).

History of Instant Proceedings

Plaintiff Esquire is a Delaware Corporation with its

principal place of business in Atlanta, Georgia. Rec. Doc. 1 ¶ 11.

Esquire provides court-reporting services to several states across

the nation, including Louisiana, “in depositions, arbitrations,

and other proceedings . . .” Id. In the instant suit, plaintiff

challenges the constitutionality a state statute, Article 1434,

which prohibits court reporters from entering into contracts with

party litigants, among other restrictions.4

Defendant CSR Board5 is a “regulatory body” created to

maintain and police the shorthand reporting profession as well as

establish a standard of competency for those persons engaged in

the profession. See Rec. Doc. 1 at ¶ 13. The CSR Board is composed

of “active market participants” as six of the nine members of the

board are practicing court reporters. Id. at ¶ 15.

Defendant LCRA is a private organization created in 1955 to

“educate[], protect[], and promote[] the court reporting

profession in Louisiana. LCRA has ‘approximately ninety-three (93)

4 Louisiana Code of Civil Procedure Article 1434(A)(2) reads in pertinent part

“For purposes of this Article, an employee includes a person who has a

contractual relationship with a party litigant to provide shorthand reporting

or other court reporting services and also includes a person employed part or

full time under contract or otherwise by a person who has a contractual

relationship with a party litigant to provide shorthand reporting or other court

reporting services. A party litigant does not include federal, state, or local

governments, and the subdivisions thereof, or parties in proper person.” LA.

CODE. CIV. PROC. art. 1434(A)(2)(emphasis added).

5 Paul A. Bonin, Vincent P. Borello, Jr., Milton Donegan, Jr., Suzette Magee,

Kimya M. Holmes, John H. Andressen, Mary F. Dunn, Elizabeth C. Methvin, and

Laura Putnam are all members of the CSR Board. See Rec. Doc. 1 at ¶ 12.

dues-paying members,” with annual membership dues set at $76. Rec.

Doc. 1 at ¶ 18; see also Rec. Doc. 95 at 2. Vincent Borello, and

Messrs. Donnegan, Andressen, Dunn, Magee, and Methvin were

allegedly members of LCRA while simultaneously holding positions

on the CSR Board. See Rec. Doc. 1 at ¶ 19.

Plaintiff alleges Article 1434 prohibits court reporters from

“offering volume-based price discounts to customers and [the

legislation was] motivated by the ‘sweet deals [that] were being

made to big insurance and defense firms.’” Id. at ¶ 1 (citing CSR

Board Meeting Transcript, January 20, 2012 at 148:14-149:9).

Further, while Article 1434 makes no mention of volume based price

discounts, “‘sweet deals’”, nor contains any language evidencing

any legislative intent to displace competition amongst court

reporters, defendants LCRA and CSR Board allegedly agreed that

LCRA members “would not engage in volume-based price discounting,

that [The CSR Board members] would exercise their voting control

on the board to effect and police their conspiracy, and that the

LCRA, the [CSR Board] and its members would use the meetings of

the [CSR Board] as cover for discussing ways to suppress price

competition among court reporters.” Id. at ¶ 3. Said differently,

plaintiff alleges that defendants LCRA and the CSR Board conspired

together to restrict trade by disallowing volume-based discounts

to court reporting firms, in violation of the Sherman Antitrust

Act. See Rec. Doc. 1; see also 15 U.S.C. § 1.

III. LAW AND ANALYSIS

A. Motion to Dismiss Standard

Rule 12(b)(6) of the Federal Rules of Civil Procedure allows

a party to move for dismissal of a complaint for failure to state

a claim upon which relief can be granted. To survive a motion to

dismiss under Rule 12(b)(6), a plaintiff’s complaint “must contain

‘enough facts to state a claim to relief that is plausible on its

face.’” Varela v. Gonzalez, 773 F.3d 704, 707 (5th Cir. 2014)

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In

other words, a plaintiff’s “[f]actual allegations must be enough

to raise a right to relief above the speculative level.” Twombly,

550 U.S. at 555. “A claim has facial plausibility when the

plaintiff pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the

misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(citing Twombly, 556 U.S. at 556).

When deciding whether a plaintiff has met his or her burden,

a court “accept[s] all well-pleaded factual allegations as true

and interpret[s] the complaint in the light most favorable to the

plaintiff, but ‘[t]hreadbare recitals of the elements of a cause

of action, supported by mere conclusory statements’ cannot

establish facial plausibility.” Snow Ingredients, Inc. v.

SnoWizard, Inc., 833 F.3d 512, 520 (5th Cir. 2016) (quoting Iqbal,

556 U.S. at 678) (some internal citations and quotation marks

omitted). Plaintiff must “nudge[] [his or her] claims across the

line from conceivable to plausible.” Twombly, 550 U.S. at

570.Parties attach to their pleadings supporting memorandum and

evidentiary material.6

The Sherman Act

Under Section 1 of the Sherman Act, “[e]very contract,

combination in the form of trust or otherwise, or conspiracy, in

restraint of trade or commerce among the several States, or with

foreign nations, is declared to be illegal.” 15 U.S.C. § 1. In

order to establish a Section 1 violation, “plaintiffs must show

that the defendants (1) engaged in a conspiracy (2) that produced

some anticompetitive effect (3) in the relevant market.” Abraham

& Veneklasen Joint Venture v. Am. Quarter Horse Ass’n, 776 F. 3d

321, 327 (5th Cir. 2014). Additionally, to seek relief for anti-

competitive conduct under the Sherman Act, the plaintiff must show

both an actual injury and an “antitrust injury”—i.e., the plaintiff

must show that “the defendants’ activities caused an injury to

competition.” Jebaco, Inc. v. Harrah’s Operating Co., 587 F. 3d

314, 318-19 (5th Cir. 2009); Doctor’s Hosp. of Jefferson, Inc. v.

Se. Med. Alliance, 123 F. 3d 301, 307 (5th Cir. 1997).

Defendant LCRA asserts that plaintiff Esquire has not

properly plead that LCRA, as an association, engaged in a

6 Under Federal Rule of Civil Procedure 12(b) or 12(d) standards, the result

here would remain unchanged. See Fed. R. Civ. P. 12(b) & 12(d).

conspiracy to produce an anticompetitive effect. Rec. Doc. 95. In

order to prove a conspiracy “in restraint of trade, the Plaintiff

must show some kind of ‘common design and understanding, or a

meeting of the minds in an unlawful arrangement.’” Abraham &

Veneklasen Joint Venture, 776 F.3d at 330 (citing Am. Tobacco Co.

v. United States, 328 U.S. 781, 810 (1946)). The United States

Supreme Court has held: “The antitrust Plaintiff should present

direct or circumstantial evidence that reasonably tends to prove

that the manufacturer and others ‘had a conscious commitment to a

common scheme designed to achieve an unlawful objective.’”

Monsanto Co. v. Spray-Rite Serv. Corp., 465 U.S. 752, 764 (1984).

A necessary component of a Sherman Act conspiracy is “a showing of

concerted action on the part of the defendants.” Tunica Web Adver.

v. Tunica Casino Operator’s Ass’n, Inc., 496 F.3d 403, 409 (5th

Cir. 2007).

Plaintiff alleges in its complaint that LCRA agreed with its

members on the CSR Board [“The Court Reporters”] “that the LCRA

would not engage in volume-based price discounting, that the Court

Reporters would exercise their voting control on the [CSR] Board

to effect and police their conspiracy, and that the LCRA, the Court

Reporters, and its members would use the meetings of the Board as

cover for discussing ways to suppress price competition among court

reporter’s. See Rec. Doc. 1 at ¶ 3. Plaintiff cites transcripts of

CSR Board meeting minutes, emails, and Facebook7 posts by alleged

members of the LCRA, to show concerted activities between the LCRA,

the Court Reporters, and the CSR Board. See Rec. Doc. 1 at ¶¶ 51-

55.

In one such example, plaintiff cites a transcript of a CSR

Board meeting. During the meeting, Peter Gilberti (Mr. Gilberti),

member of the LCRA Board and the association’s current Treasurer

and Registered Agent, stated, “[On] behalf of the board of the

[LCRA] . . . Our position is we would just like to know what the

Board is going to do within its powers . . . [to] have something

done about this issue once and for all . . .” Rec. Doc. 1-1, p.

40, CSR Board Meeting Transcript, January 20, 2012. Mr. Gilberti

also mentioned “red flag state[s]”8 and that “[the LCRA] would like

to see Louisiana become one of those.” Id.; Rec. Doc. 1-1.

Further, Mr. Gilberti stated:

“When [the Court Reporting Firms] don’t see anything in

your rules and regulations . . . [the Court Reporting

Firms are] not labeling [Louisiana] as a red flag state

to skip, that they can’t do business here, and I think

that something needs to come from [the Board’s] end,

this body, to do something legislatively or through the

Administrative Procedure Act, so that those insurance

companies get the message that this association is ready

to take on responsibility as a State association to send

out something to the insurance companies to let them be

known or . . . for the State of Louisiana to get the

message out.”

7 Facebook is a free social networking Web platform that promotes and facilitates

interaction between users.

8 “Red Flag” States in which court reporting firms are not allowed to contract

or do business. See Rec. Doc. 1-1 at p. 38, CSR Board Meeting Transcript,

January 20, 2012.

Id. at p. 45. In response to the discussion, Mr. Marcello, of the

CSR Board, stated, “I think I can make an argument under our

current rules that we have authority to prohibit this practice .

. .”9 Id. at p. 41. Plaintiff concludes by arguing that Mr.

Gilberti, speaking on behalf of the LCRA, and the CSR came to a

“‘common design and understanding, or a meeting of the minds in an

unlawful arrangement’” to restrain trade by establishing Louisiana

as a “red flag” state, thus prohibiting court reporting firms from

contracting in Louisiana. See Abraham & Veneklasen Joint Venture,

776 F.3d at 330(citing Am. Tobacco Co. v. United States, 328 U.S.

781, 810 (1946); See also Rec. Doc. 1-1 at p. 38, CSR Board Meeting

Transcript, January 20, 2012.

LCRA contends that the Court Reporters, while simultaneously

being members of the CSR Board and the LCRA, were not acting in

their capacity as members of the LCRA when they were engaged in

the alleged conspiracy. See Rec. Doc. 97 at 7-8. In Federal

Prescription Service, Inc. v. American Pharmaceutical Ass’n, the

District of Columbia Circuit held that “evidence of overlapping

membership . . . is not to be treated as probative of conspiracy,”

and, “[m]ere membership in associations is not enough to establish

participation in a conspiracy with other members of those

associations, much less a conspiracy between those associations

9 The “practice” that Mr. Marcello is referring to is court reporters, or court

reporting firms, contracting with party-litigants.

and yet another association.” Fed. Prescription Serv., Inc. v. Am.

Pharm. Ass'n, 663 F.2d 253, 265 (D.C. Cir. 1981).

While plaintiff alleges that members of the CSR Board were

simultaneously members of the LCRA, that alone does not result in

a finding that both associations are engaged in an unlawful

conspiracy. Based on above examples as well as other actions by

some individuals who simultaneously hold membership on the LCRA

and CSR boards, plaintiff asks the court to conclude that LCRA

conspired with the CSR to unlawfully suppress competition. Without

more, we decline the invitation. Moreover, the acceptance of the

invitation does not, per se, end the analysis of this claim, as

shown below.

Noerr-Pennington Immunity

Defendants also seek protection under the Noerr-Pennington

doctrine as a defense to their alleged concerted activities under

the Sherman Act.10 The Noerr-Pennington doctrine provides that

10 Plaintiffs contend that the Fifth Circuit’s holding in Veritext regarding the

applicability of Parker immunity also forecloses the applicability of Noerr-

Pennington immunity as well because Noerr-Pennington was developed as a

“corollary” to Parker. Rec. Doc. 96 at 15; see also Columbia v. Omni Outdoor

Advert., Inc., 499 U.S. 365, 379 (1991). This contention is unpersuasive as

Parker and Noerr-Pennington immunity are distinct doctrines. See George R.

Whitten, Jr., Inc. v. Paddock Pool Builders, Inc., 424 F.2d 25, 29 n.4 (1st

Cir. 1970)(stating “While the two doctrines are often treated as one, we agree

with [defendant]’s separate treatment of each. The two are not coterminous.”).

As an example, the First Circuit Court of Appeal in Whitten stated, “an

unsuccessful attempt to influence government action may fall within the Noerr-

Pennington immunity, but not the Parker immunity. Conversely, a state regulatory

agency may decide to restrain competition without prompting; the beneficiaries,

not having solicited government action, would enjoy a Parker immunity but not

one based on Noerr-Pennington. Moreover, because of its First Amendment

“parties who petition the government for governmental action

favorable to them cannot be prosecuted under the antitrust laws

even though their petitions are motivated by an anticompetitive

intent.” Video Int’l Prod., Inc. v. Warner-Amex Cable Commc’n,

Inc., 858 F. 2d 1075, 1082 (5th Cir. 1988); see also Bayou Fleet,

Inc. v. Alexander, 234 F.3d 852, 859 (5th Cir. 2000)(stating that

Noerr-Pennington “confers immunity to private individuals seeking

anti-competitive action from the government.”); see also Octane

Fitness, LLC v. ICON Health & Fitness, Inc., 572 U.S. 545, 556

(2014) (stating “[D]efendants are immune from antitrust liability

for engaging in conduct (including litigation) aimed at

influencing decision making by the government.”). Accordingly,

“‘petitions’ made to the executive or judicial branches of

government, e.g., in the form of administrative or legal

proceedings, are exempt from antitrust liability even though the

parties seek ultimately to destroy their competitors through these

actions.” Video Int’l Prod., Inc., 858 F. 2d at 1082. Pre-suit

threats to litigate, such as cease-and-desist letters, made in

good faith are similarly exempt. Coastal States Mktg., Inc. v.

Hunt, 694 F.2d 1358, 1367 (5th Cir. 1983) (“it would be absurd to

hold that it does not protect those acts reasonably and normally

overtones, the Noerr-Pennington immunity is arguably broader than the Parker

exemption.” Whitten, 424 F.2d at 29.

attendant upon effective litigation.”) (footnote and citations

omitted).

Plaintiff counters that the alleged petitioning activities

involving the CSR Board, specifically requesting enforcement of

Article 1434, fall under the “sham exception” to Noerr-Pennington

immunity. Under the sham exception, a party is not entitled to

Noerr-Pennington immunity, “when petitioning activity, ‘ostensibly

directed towards influencing governmental action, is a mere sham

to cover . . . an attempt to interfere directly with the business

relationships of a competitor’”. Professional Real Estate

Investors, Inc. v. Columbia Pictures Industries, Inc., 508 U.S.

49, 56 (1993). The sham exception applies to “defendants who use

the process as an anticompetitive weapon, rather than those who

genuinely seek to achieve an intended result.” Bayou, 234 F. 2d at

861-62 (emphasis added). The United States Supreme Court has

articulated a two-part test for determining whether lobbying, or

litigation petitioning activity is a sham. Professional Real

Estate Investors, Inc., 508 U.S. at 50. In order for petitioning

activity to be considered a “sham,”:

First, the lawsuit [lobbying or request] must be

objectively baseless in the sense that no reasonable

litigant could realistically expect success on the

merits. Only if challenged litigation [lobbying or

request] is objectively meritless may a court examine

the litigant's subjective motivation.

. . .[S]econd . . . a court should focus on whether the

baseless suit [lobbying or request] conceals ‘an attempt

to interfere directly’ with a competitor's business

relationships, through the ‘use [of] the governmental

process—as opposed to the outcome of that process—as an

anticompetitive weapon,’

Id. (citing Columbia v. Omni Outdoor Adver., Inc., 499 U.S. 365,

380 (1991)) (internal citations omitted) (emphasis in original)

(added language bracketed). Further, petitioning activity is not

strictly limited to lawsuits but also encompasses “lobbying

activities.” See Bayou, 234 F.3d at 861-62 (stating that lobbying

activities of a party to include “[c]ontact[ing] a Parish

Councilmember and wr[iting] letters to the Army Corps of

Engineers.”).

Under the first prong of the sham test, the Fifth Circuit has

held that “[l]obbying activity is objectively baseless if a

reasonable private citizen could not expect to secure favorable

government action. Id. at 862 (citing Professional Real Estate

Investors, Inc., 508 U.S. at 60). Under the second prong of the

sham test, petitioning activity will fall under the sham exception

when a party “‘petitions’ the government by engaging

administrative processes only to preclude or delay its

competitor’s access to those processes . . .” Video Int’l Prod.,

Inc., 858 F.2d at 1082.

The United States Supreme Court has noted, “[a] classic

example is the filing of frivolous objections to the license

application of a competitor, with no expectation of achieving

denial of the license but simply in order to impose expense and

delay.” Columbia v. Omni Outdoor Adver., Inc., 499 U.S. 365, 380

(1991). The Court in Omni further held, “A ‘sham’ situation

involves a defendant whose activities are ‘not genuinely aimed at

procuring favorable government action’ at all, not one ‘who

‘genuinely seeks to achieve his governmental result, but does so

through improper means,’’” Id. (internal citations omitted).

In this case, defendant has shown entitlement to Noerr-

Pennington immunity for their petitioning activities requesting

the CSR Board to enforce Article 1434. Plaintiff asserts that

defendant LCRA “made baseless repetitive complaints to the Board

and caused it to issue subpoenas, show cause orders, and engage in

widespread coercion directed at insurance companies, private

attorneys, and national court reporting firms over which it had no

jurisdiction.” Rec. Doc. 96 at 15. Because LCRA is a private

citizen, who effectively lobbied the CSR Board, a “regulatory

body,”11 to enforce Article 1434, LCRA’s actions are permissible

petitioning activity protected under Noerr-Pennington. Rec. Doc.

1 at ¶ 13.

11 The CSR Board “aid[s] in all matters pertaining to the advancement of the

science of shorthand reporting . . . including but not by way of limitation,

all matters that may advance the professional interest of certified shorthand

reporters, including the development, implementation, and enforcement of

continuing education requirements and such matters as concern their relations

with the public.” Rec. Doc. 1 ¶ 13; see also LA. REV. STAT. ANN. § 37:2553.

Further, the sham exception is not applicable because the

lobbying activities conducted by LCRA were not objectively

baseless. Defendant LCRA’s Treasurer and Registered Agent, Mr.

Gilberti, (1) attended a CSR Board meeting, (2) announced he was

speaking on behalf of the LCRA, and (3) implored the Board to “do

something” with regard to enforcing Article 1434 and making

Louisiana a “red flag state.” Rec. Doc. 1-1 at p. 38, 40, CSR Board

Meeting Transcript, January 20, 2012. A reasonable private

citizen, speaking at a regulatory board meeting, and requesting

enforcement and compliance with an existing provision of the law,

could reasonably expect, as shown here, to procure a favorable

result. “Just as evidence of anticompetitive intent cannot affect

the objective prong of Noerr 's sham exception, a showing of malice

alone will neither entitle the wrongful civil proceedings

plaintiff to prevail nor permit the factfinder to infer the absence

of probable cause.” Professional Real Estate Investors, Inc. 508

U.S. at 63, 113 S. Ct. at 1929. Even if the petitioning activity

by LCRA was baseless, it would pass the subjective component of

the test articulated by the Supreme Court in Professional Real

Estate Investors, Inc., 508 U.S. at 56. Accordingly, LCRA’s motion

should be granted, dismissing plaintiff’s Sherman Act claims.

Based on the foregoing, even if LCRA is shown to have

participated in a concerted effort to restrain trade with the CSR

Board, plaintiff Esquire has failed to establish the objective

prong of Noerr’s sham exception. Professional Real Estate

Investors, Inc. 508 U.S. at 49, 50, 113 S. Ct. at 1922. Defendant

LCRA is therefore entitled to Noerr-Pennington Immunity.

Constitutional Vagueness

Defendants LCRA and CSR Board contend that Article 1434 is

not unconstitutionally vague in that it is “crystal-clear in

prohibiting a Louisiana Court reporter from entering into an

agreement, directly or indirectly, with a party litigant to provide

court reporting services. See Rec. Doc. 94; see also Rec. Doc. 95

(stating “It is clear that the article forbids anyone taking a

deposition to have a contractual relationship to provide shorthand

reporting or other court reporting services with a party litigant,

unless that litigant is a governmental entity or a party in proper

person.”). Plaintiff asserts that Article 1434 is

unconstitutionally vague “as applied and facially” because the

article does not “specify[] the contractual relationships that are

banned.” Rec. Doc. 96 at 19. Article 1434 reads in pertinent part:

A deposition shall be taken before an officer authorized

to administer oaths, who is not an employee or attorney

of any of the parties or otherwise interested in the

outcome of the case.

For purposes of this Article, an employee includes a

person who has a contractual relationship with a party

litigant to provide shorthand reporting or other court

reporting services and also includes a person employed

part or full time under contract or otherwise by a person

who has a contractual relationship with a party litigant

to provide shorthand reporting or other court reporting

services. A party litigant does not include federal,

state, or local governments, and the subdivisions

thereof, or parties in proper person.”

LA. CODE. CIV. PROC. art. 1434(A)(1)(2) (emphasis added).

The Fifth Circuit has held that the appropriate standard for

whether a law is unconstitutionally vague hinges on whether the

law is civil or criminal in nature. Ford Motor Co. v. Texas Dept.

of Transp., 264 F.3d 493, at 507 (5th Cir. 2001). In Ford Motor

Co., the Fifth Circuit stated that “a less stringent standard is

applied to civil statutes that regulate economic activity.” Id. In

determining whether the civil statute is vague, courts in the Fifth

Circuit will invalidate a statute if “‘it commands compliance in

terms ‘ so vague and indefinite as to really be no rule or standard

at all’ . . . ‘or if it is substantially incomprehensible.’’” Id.

(citing United States v. Clinical Leasing Service, Inc., 925 F.2d

120, 122 n. 2 (5th Cir. 1991)).

Here, the plain text of Article 1434 is clear. Court reporters

in Louisiana may not take depositions if they are employed by a

party to the action which the deposition pertains. LA. CODE. CIV.

PROC. art. 1434(A)(2). Article 1434 states that an employee is

someone who “has a contractual relationship with a party litigant

to provide shorthand reporting services.” Id. Article 1434 is

sufficiently clear in stating as to who may take a deposition in

Louisiana, and that anyone with a contractual relationship with a

party to the action at hand is not permitted to take a deposition.

In response to plaintiff’s contentions about whether Article

1434 prohibits a laundry list of actions, it is clear that Article

1434 prohibits all contractual agreements between party litigants

and court reporters. Article 1434 is by no means “substantially

incomprehensible.” Ford Motor Co., 264 F.3d at 507. Thus,

plaintiff’s claim that Article 1434 is unconstitutionally vague or

overly broad has no merit. Defendants LCRA and CSR Board’s motions

to dismiss should also be GRANTED with respect to this claim.

New Orleans, Louisiana this 26th day of September, 2019

___________________________________

SENIOR UNITED STATES DISTRICT JUDGE