# Veritext Corp. v. Bonin

> District Court, E.D. Louisiana · September 27, 2019

URL: https://www.frixlaw.com/law-library/cases/10184881

## Case

- **Court:** District Court, E.D. Louisiana
- **Decided:** September 27, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10184881

## How later opinions describe it (automated extraction)

- stating “While the two doctrines are often treated as one, we agree with [defendant]’s separate treatment of each. The two are not coterminous.”
- stating “[D]efendants are immune from antitrust liability for engaging in conduct (including litigation) aimed at influencing decision making by the government.”
- 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.”
- stating that Noerr-Pennington “confers immunity to private individuals seeking anti-competitive action from the government.”

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10184881. Public record. Not legal advice.