Acoustic Systems, Inc. v. Wenger Corp.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 99-50112

ACOUSTIC SYSTEMS INC,

Plaintiff - Appellee,

VERSUS

WENGER CORPORATION; STEVE BRIGHT,

Defendants - Appellants.

Appeal from the United States District Court

for the Western District of Texas

April 3, 2000

Before DUHÉ, BARKSDALE, and DENNIS, Circuit Judges.

DENNIS, Circuit Judge:

Acoustic Systems, Inc. (“Acoustic”) brought this antitrust

suit, 15 U.S.C. § 1, et seq., against the defendants, Wenger

Corporation and its employee Steve Bright (collectively “Wenger”)

in district court. Wenger moved unsuccessfully for summary

judgment upon both the state action and the Noerr-Pennington

doctrines and appealed. We dismiss the appeal for lack of

appellate jurisdiction. The denial of a summary judgment motion

based upon the Noerr-Pennington doctrine is not a collateral order

within this court’s appellate jurisdiction. The denial of a

summary judgment motion premised upon the state action doctrine

asserted by a private defendant is not a collateral order within

this court’s appellate jurisdiction.

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I. FACTS and PROCEDURAL HISTORY

Wenger and Acoustic competitively manufacture and sell modular

music practice rooms to schools, universities, and other entities.

Wenger at one time was the sole manufacturer of modular music

practice rooms. Acoustic is a relative newcomer to the market.

Acoustic alleges that Wenger has endeavored to protect its 90

percent share of the modular music practice room market by engaging

in anticompetitive conduct. Acoustic alleges that Wenger’s near

monopoly enables it to persuade architects and builders to use

specifications calling for the unique features of Wenger modular

practice rooms. Thus, the specification process is an extensive

barrier to Acoustic’s entry into the market. Acoustic also alleges

that Wenger interferes with Acoustic’s existing and prospective

contractual relations by false disparagement of Acoustic’s products

and false representations that Acoustic has infringed upon a Wenger

patent. Wenger allegedly focuses its anticompetitive conduct upon

public and private universities and public school districts, as

well as at private architects and general contractors in charge of

public school construction projects.

Acoustic filed suit in May 1997 alleging that Wenger had

engaged in unfair and anticompetitive business practices against

Acoustic including monopolization, predatory pricing and price

discrimination, per se tying and restraint of trade, use of

fraudulent patent, patent misuse, tortious interference with

contract, commercial defamation, and false description and unfair

2

competition.1

Pursuant to a Wenger motion to dismiss, the district court

dismissed two patent related claims (Counts IV and V), and they

form no part of this appeal. In August 1998 Wenger moved for

summary judgment dismissal of all 16 claims then pending: five

relating to antitrust under the Sherman and Clayton Acts, one for

false patent marking, one for violation of Texas public procurement

laws (Texas Education Code § 44.031 et seq.), and nine for business

torts.

The district court granted summary judgment in favor of Wenger

dismissing the state procurement law claim but denied Wenger’s

summary judgment motion as to the remaining 15 claims. On January

19, 1999, Wenger timely appealed from the partial denial of summary

judgment asserting the collateral order exception to the final

judgment rule on grounds that the summary judgment motion was based

on the state action and Noerr-Pennington doctrines. Acoustic

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Acoustic’s amended complaint contained the following counts

of anticompetitive conduct and business torts: Count I (attempted

monopolization, 15 U.S.C. § 2 (Sherman Act)); Count II (predatory

pricing and price discrimination, 15 U.S.C. §§ 22(A) & 13(A)

(Clayton Act)); Count III (per se tying and restraint of trade, 15

U.S.C. § 1 (Sherman Act)); Count IV (declaratory judgment of patent

invalidity); Count V (patent misuse); Count VI (false patent

marking, 35 U.S.C. § 292); Count VII (attempted monopolization --

Walker Process antitrust, 15 U.S.C. § 2 (Sherman Act)); Count VIII

(attempted monopolization -- Kobe antitrust, 15 U.S.C. § 2 (Sherman

Act)); Count IX (tortious interference with contractual relations);

Count X (tortious interference with prospective business

relations); Count XI (commercial defamation); Count XII (per se

trade slander and libel); Count XIII (false description and unfair

competition, 15 U.S.C. § 1125); Count XIV (violation of Texas

Public School Contract Statute); Count XV (common law unfair

competition); Count XVI (injury to business reputation, Tex. Bus.

& Com. Code § 16.29); Count XVII (unfair practices, Tex. Bus. &

Com. Code § 15.05); and Count XVIII (conspiracy).

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contends that we lack appellate jurisdiction to consider this

appeal because, in the context of this case involving a private

defendant, neither the state action doctrine nor the Noerr-

Pennington doctrine operates to confer immediate appealability on

the interlocutory order issued by the district court.

II. ANALYSIS

Before proceeding further, we must determine whether we have

appellate jurisdiction. See Simmons v. Willcox, 911 F.2d 1077,

1080 (5th Cir. 1990) (citing Mosley v. Cozby, 813 F.2d 659, 660 (5th

Cir. 1987)). As the appellant, Wenger bears the burden of

establishing this court’s appellate jurisdiction over its appeal.

Prewitt v. City of Greenville, 161 F.3d 296, 298 (5th Cir.

1998)(citing Gonzales v. Texas Employment Comm’n, 563 F.2d 776, 777

(5th Cir. 1977)).

Title 28 U.S.C. § 1291 provides for appeal from “final

decisions of the district courts.” Under that provision, an appeal

may not be taken “‘from any decision which is tentative, informal,

or incomplete,’ as well as from any ‘fully consummated decisions,

where they are but steps towards final judgment in which they will

merge.’” Puerto Rico Aqueduct and Sewer Authority v. Metcalf &

Eddy, Inc., 506 U.S. 139, 142-43 (1993)(quoting Cohen v. Beneficial

Industrial Loan Corp., 337 U.S. 541, 546 (1949)). Because the

denial of a summary judgment motion is not a final decision of the

district court, the order presently under review by this court is

interlocutory. See In re Corrugated Container Antitrust

Litigation, 694 F.2d 1041, 1042 (5th Cir. 1983); 10A Charles Alan

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Wright et al., Federal Practice and Procedure § 2715 (3rd ed. 1998).

Under the collateral order doctrine, however, an interlocutory

district court decision is immediately appealable as a final

decision under § 1291 if it (1) conclusively determines the

disputed question; (2) resolves an important issue completely

separate from the merits of the action; and (3) is effectively

unreviewable on appeal from a final judgment. See Coopers &

Lybrand v. Livesay, 437 U.S. 463, 468-69 (1978). If the order at

issue fails to satisfy any one of these requirements, it is not an

appealable collateral order. See Gulfstream Aerospace Corp. v.

Mayacamas Corp., 485 U.S. 271, 276 (1988).

Wenger asserts that an order denying a summary judgment motion

premised upon either the state action or the Noerr-Pennington

doctrine is immediately appealable under the collateral order

doctrine. We conclude, however, that, while both doctrines afford

a defense to liability, the state action doctrine does not provide

an immunity to suit to a private party, and the Noerr-Pennington

doctrine does not provide anyone a right not to stand trial.

Consequently, the district court’s denial of Wenger’s motion for

summary judgment is not an appealable collateral order.2

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Because we conclude that the district court’s order denying

summary judgment is not an immediately appealable collateral order,

it is neither necessary nor appropriate to decide whether exclusive

appellate jurisdiction would otherwise lie in the Federal Circuit

under 28 U.S.C. § 1295 due to Acoustic’s Walker Process, Kobe

antitrust, and false patent marking claims. See Scherbatskoy v.

Halliburton Co., 125 F.3d 288, 290-91 (5th Cir. 1997)(under § 1295

the Federal Circuit has exclusive jurisdiction to review a district

court’s final decision if that court’s jurisdiction was based in

whole or in part on 28 U.S.C. 1338(a), i.e., where the complaint

includes allegations that federal patent law creates the cause of

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1. State Action Doctrine

In Martin v. Memorial Hospital at Gulfport, 86 F.3d 1391 (5th

Cir. 1996), this court recognized that an appeal by a municipal-

state subdivision hospital on the issue of whether it acted

pursuant to a clearly articulated and affirmatively expressed

policy can be taken immediately under the collateral order

doctrine. See 86 F.3d at 1394; see also TEC Cogeneration Inc. v.

Florida Power & Light Co., 76 F.3d 1560, 1564 n.1 (11th Cir.),

modified, 86 F.3d 1028 (11th Cir. 1996)(denial of a motion for

summary judgment brought by a public utility under the state action

immunity doctrine is immediately appealable under the collateral

order doctrine); Askew v. DCH Regional Health Care Authority, 995

F.2d 1033, 1036 (11th Cir.), cert. denied, 510 U.S. 1012 (1993)

(same result where defendant moving for summary judgment is a

public hospital); Commuter Transp. Systems, Inc. v. Hillsborough

County Aviation Authority, 801 F.2d 1286, 1289 (11th Cir. 1986)(same

result where defendant is public airport authority); but see Huron

Valley Hospital, Inc. v. City of Pontiac, 792 F.2d 563, 567-68 (6th

Cir.), cert. denied, 479 U.S. 885 (1986) (denial of state action

antitrust exemption to state officials is not an appealable

action or federal patent law is a necessary element of the claim);

Natec, Inc. v. Deter Co., 28 F.3d 28 (5th Cir. 1994)(same). In

Scherbatskoy and Natec, Inc., we transferred to the Federal Circuit

appeals from such final decisions after concluding that the

district courts had exercised subject matter jurisdiction under §

1338(a). See 125 F.3d at 291; 28 F.3d at 29. In the instant case,

however, there is neither a final decision nor an immediately

appealable collateral order. Thus we do not enjoy even the

preliminary jurisdiction to determine whether the district court

operated under its grant of jurisdiction in § 1338(a), and,

therefore, we do not pass upon the applicability of § 1295.

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collateral order because state action questions did not reflect an

entitlement to avoid the burdens of trial, could be preserved for

review on appeal from a final judgment, and were bound up with the

merits).

In Martin, a nephrologist brought an antitrust action against

a public hospital, owned and operated by a municipality and a state

subdivision hospital district, and against the hospital’s board of

trustees to enjoin the enforcement of the hospital’s contract with

the medical supervisor of its End Stage Renal Disease facility.

See 86 F.3d at 1392-93. We concluded that the public hospital’s

state action immunity claim entailed a right not to bear the burden

of the suit such that, regardless of the outcome, denial of the

right would be effectively unreviewable after trial. See id. at

1396. We also concluded that the interlocutory order in Martin

satisfied the remaining two criteria of the collateral order

doctrine: it conclusively determined the disputed question and that

question involved a claim of right separable from, and collateral

to, rights asserted in the action. See id. at 1396-97. The

express holding of Martin limited extension of the collateral order

doctrine to the denial of a claim of state action immunity “to the

extent that it turns on whether a municipality or subdivision acted

pursuant to a clearly articulated and affirmatively expressed state

policy.” Id. at 1397 (emphasis added).

Wenger argues that a private party seeking immunity from

antitrust suit and liability under the state action doctrine should

also be permitted to appeal immediately from a denial of summary

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judgment on these issues within the collateral order exception.

Wenger has not cited, and we are not aware of, any decision to this

effect.

In determining whether to expand the collateral order

exception to include the present case, we are mindful of the

Supreme Court’s admonition that it is but “a narrow class of

collateral orders which do not meet this [traditional] definition

of finality, but which are nevertheless immediately appealable

under § 1291 . . . .” Quackenbush v. Allstate Ins. Co., 517 U.S.

706, 712 (1996). Moreover, the Supreme Court has repeatedly

stressed that the “narrow” exception should stay that way and never

be allowed to swallow § 1291's general rule of finality. See

Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 868

(1994). Indeed, this court has stated that “the collateral order

doctrine is not to be applied liberally. Rather, the doctrine is

extraordinarily limited in its application.” Ozee v. American

Council on Gift Annuities, Inc., 110 F.3d 1082, 1091 (5th Cir.),

vacated on other grounds, 522 U.S. 1011 (1997); see also In re

Corrugated Container Antitrust Litigation, 694 F.2d at 1042-43

(citing and quoting North American Acceptance Corp. Securities

Cases v. Arnall, Golden & Gregory, 593 F.2d 642, 645 (5th Cir.),

cert. denied, 444 U.S. 956 (1979) (“This Court has repeatedly

stressed the extraordinarily limited nature of the ‘collateral

order’ doctrine: ‘Because of the problems of piecemeal review, and

because courts are burdened beyond measure, we must be parsimonious

in our analysis of appealability. . . . It should simply be a

8

strict application of Cohen. In the great majority of cases Cohen

will lead the court to correctly conclude that an interlocutory

order is not directly appealable.’”)).

“[W]hen we assess whether interlocutory review is appropriate,

‘[t]he critical question . . . is whether the essence of the

claimed right is a right not to stand trial.’” Shanks v.

AlliedSignal, Inc., 169 F.3d 988, 991-92 (5th Cir. 1999)(citing and

quoting Van Cauwenberghe v. Biard, 486 U.S. 517, 524 (1988)). The

Supreme Court has “acknowledged that virtually every right that

could be enforced appropriately by pretrial dismissal might loosely

be described as conferring a right not to stand trial.” Digital

Equip. Corp., 511 U.S. at 873. Therefore, “[section] 1291 requires

courts of appeals to view claims of a ‘right not to be tried’ with

skepticism, if not a jaundiced eye.” Id.

Applying the foregoing precepts, we conclude that the state

action doctrine does not immunize private defendants from suit and

that the collateral order doctrine does not confer appellate

jurisdiction over this appeal. The state action doctrine was first

espoused by the Supreme Court in Parker v. Brown, 317 U.S. 341

(1943), as an immunity for state regulatory programs from antitrust

claims.3 In Parker, the Court considered the legal effect of the

3

Though the state action doctrine is often labeled an

immunity, that term is actually a misnomer because the doctrine is

but a recognition of the limited reach of the Sherman Act which

does “not undertak[e] to prohibit a sovereign state from imposing

an anticompetitive restraint as an act of government.” Martin, 86

F.3d at 1395 (citing Parker v. Brown, 317 U.S. 341, 352 (1942));

see also Surgical Care Center of Hammond, L.C. v. Hospital Serv.

Dist. No. 1 Of Tangipahoa Parish, 171 F.3d 231, 234 (5th Cir.

1999)(en banc)(“‘Parker immunity’ is more accurately a strict

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California Agricultural Prorate Act which authorized state

officials to issue regulations restricting competition among raisin

producers and setting prices in distribution to packers. See 317

U.S. at 346. The marketing program implemented under the Act

seriously restricted the freedom of raisin producers to sell their

crops in interstate commerce, and the program was challenged under

the Sherman Act. See id. at 350. The Supreme Court found “nothing

in the language of the Sherman Act or in its history which suggests

that its purpose was to restrain a state or its officers or agents

from activities directed by its legislature.” Id. at 350-51. The

Court concluded that under our federal system of government and out

of concerns for state sovereignty, state regulatory programs cannot

violate “[t]he Sherman Act [because the Act] makes no mention of

the state as such, and gives no hint that it was intended to

restrain state action or official action directed by a state.” Id.

at 351.

“In subsequent cases, the Court extended the state action

doctrine to cover, under certain circumstances, acts by private

parties that stem from state power or authority.” Martin, 86 F.3d

at 1397 (citing California Retail Liquor Dealers Ass’n v. Midcal

Aluminum, Inc., 445 U.S. 97 (1980)). To ensure that private

parties could claim state action immunity from antitrust liability

only when their anticompetitive acts were truly the product of

state regulation, the Supreme Court established a rigorous two-

standard for locating the reach of the Sherman Act than the

judicial creation of a defense to liability for its violation.”).

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pronged test to determine whether the private party conduct should

be deemed state action and thus shielded from the antitrust laws:

“[f]irst, the challenged restraint must be one clearly articulated

and affirmatively expressed as state policy[; and s]econd, the

anticompetitive conduct must be actively supervised by the state

itself.” Patrick v. Burget, 486 U.S. 94, 100, reh’g denied, 487

U.S. 1243 (1988) (citing and quoting Midcal Aluminum, 445 U.S. at

105)(in turn quoting City of Lafayette v. Louisiana Power & Light

Co., 435 U.S. 389, 410 (1978)(internal quotation marks omitted)).

On the other hand, municipalities and other political

subdivisions, while they are not automatically immune under Parker

because they are not sovereign, see Town of Hallie v. City of Eau

Claire, 471 U.S. 34, 38 (1985), are entitled to immunity when they

act pursuant to a clearly articulated and affirmatively expressed

state policy displacing competition. See id. at 45-46.

Municipalities and other political subdivisions are not required to

meet the second Midcal prong of active state supervision applicable

to private parties seeking the shelter of state action immunity.

See id. at 46-47.

In Martin, we concluded that the state action doctrine offered

the public hospital defendant an immunity from suit after comparing

it to claims by public officials to absolute and qualified immunity

and to claims by states to Eleventh Amendment immunity. See

Martin, 86 F.3d at 1395 (citing Nixon v. Fitzgerald, 457 U.S. 731

(1982)(absolute immunity); Mitchell v. Forsyth, 472 U.S. 511

(1985)(qualified immunity); and Puerto Rico Aqueduct and Sewer

11

Authority v. Metcalf & Eddy, Inc., 506 U.S. 139 (1993)(Eleventh

Amendment immunity)). Common to Nixon, Mitchell, and Puerto Rico

Aqueduct were concerns that public defendants would be subjected to

the costs and general consequences associated with discovery and

trial. Specifically, those concerns included (1) the indignity of

subjecting a state to the coercive process of judicial tribunals at

the instance of private parties; (2) the adverse impact on the

public interest that would result when governmental officials fail

to perform their duties with independence and without fear of

consequences unless clearly established rights are implicated; and

(3) the general costs of subjecting officials to the risks of

trial, such as distraction from governmental duties, inhibition of

discretionary action, deterrence of able people from qualified

service, and the disruptive impact upon government posed by such

pretrial matters as discovery. See id. at 1395-96. Because of

these concerns, the Supreme Court in Harlow v. Fitzgerald, 457 U.S.

800 (1982), refashioned the qualified immunity doctrine “to permit

the resolution of many insubstantial claims on summary judgment and

to avoid subjecting government officials either to the costs of

trial or to the burdens of broad-reaching discovery in cases where

the legal norms the officials are alleged to have violated were not

clearly established at the time. The entitlement is an immunity

from suit rather than a mere defense to liability; and like an

absolute immunity, it is effectively lost if a case is permitted to

go to trial.” Id. at 1396 (citing Mitchell, 472 U.S. at 527).

Because state action immunity was premised upon the Parker

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Court’s finding that “nothing in the language of the Sherman Act or

in its history [ ] suggests that its purpose was to restrain a

state or its officers or agents from activities directed by its

legislature,” Parker, 317 U.S. at 350-51 (emphasis added), the

defendant’s status as a public entity in Martin gave rise to

similar concerns. We therefore concluded that the reasoning that

underlies the immediate appealability of an order denying absolute,

qualified or Eleventh Amendment immunity indicates that the denial

of state action immunity to a state, its officers, or its agents

should be similarly appealable: in each case, the district court’s

decision that the public defendant must go to trial is effectively

unreviewable on appeal from a final judgment. See Martin, 86 F.3d

at 1396.

Wenger’s status as a private defendant does not implicate

these concerns. The Parker v. Brown state action doctrine, like

the doctrine of qualified immunity, is “interpreted to create an

immunity from suit and not just from judgment -- to spare state

officials the burdens and uncertainties of the litigation itself as

well as the cost of an adverse judgment.” Segni v. Commercial

Office of Spain, 816 F.2d 344, 346 (7th Cir. 1987) (citing Commuter

Transp. Systems, Inc., 801 F.2d at 1289-90); see also 1 Phillip E.

Areeda and Herbert Hovenkamp, Antitrust Law ¶ 222b (Revised ed.

1997) (“The importance of Parker’s status as an immunity is

particularly strong when the defendant is a government agency,

subdivision, or government official carrying out duties. Such

entities and officials cannot be intimidated from carrying out

13

their regulatory obligations by threats of costly litigation, even

if they might ultimately win.”). These concerns are not raised by

a suit against a private party. Cf. Wyatt v. Cole, 504 U.S. 158,

167-68 (1992)(private defendants may not invoke qualified immunity

when charged with 42. U.S.C. § 1983 liability for invoking state

replevin, garnishment, or attachment statutes later determined to

be unconstitutional); Rambo v. Daley, 68 F.3d 203, 206 (7th Cir.

1995), cert. denied, 517 U.S. 1157 (1996)(“Mitchell permits

interlocutory appeals only where the defendant is a public official

asserting a defense of qualified immunity.”) (citing Johnson, 515

U.S. at 311); Crippa v. Dukakis, 905 F.2d 553, 556 (1st Cir. 1990)(a

qualified immunity claimant’s right to interlocutory appeal is

available only to government officials and conceivably their

functional equivalent); Lovell v. One Bancorp, 878 F.2d 10, 13 (1st

Cir. 1989)(private defendant may not immediately appeal the denial

of a motion to dismiss asserting qualified immunity); Youghiogheny

& Ohio Coal Co. v. Baker, 815 F.2d 422, 425 (6th Cir. 1987)(an

entitlement not to be sued under Mitchell v. Forsyth is not

available to private parties); Chicago & North Western Transp. Co.

v. Ulery, 787 F.2d 1239, 1240-41 (8th Cir. 1986)(the denial of a

private defendant’s motion for summary judgment asserting qualified

immunity in not an appealable collateral order).

Wenger’s invocation of the state action doctrine, if

meritorious, provides only a defense against liability.

Accordingly, the denial of the summary judgment motion based on the

state action doctrine is effectively reviewable after trial and is

14

not an immediately reviewable collateral order. We therefore do

not have appellate jurisdiction to review this aspect of the

district court’s order.

2. Noerr-Pennington Doctrine

We are no more persuaded by Wenger’s contention that the

district court’s denial of its summary judgment asserting a defense

based on the Noerr-Pennington doctrine should be immediately

reviewable on appeal under the collateral order doctrine. That

defense against antitrust liability was established by the Supreme

Court in the Noerr-Pennington cases, holding that, as a general

rule, lobbying and other efforts to obtain legislative or executive

action do not violate the antitrust laws, even when those efforts

are intended to eliminate competition or otherwise restrain trade.

See Eastern R.R. Presidents Conference v. Noerr Motor Freight,

Inc., 365 U.S. 127, reh’g denied, 365 U.S. 875 (1961); United Mine

Workers of Am. v. Pennington, 381 U.S. 657 (1965); see also 3

Julian O. von Kalinowski et al., Antitrust Laws and Trade

Regulation § 50.01 (2nd ed. 1999). The doctrine was subsequently

extended to efforts to obtain judicial and quasi-judicial actions.

See California Motor Transp. Co. v. Trucking Unlimited, 404 U.S.

508 (1972).

The courts have based the Noerr-Pennington protection for

petitioning governmental entities on the First Amendment right of

citizens to petition the government and to participate in the

legitimate processes of government. See, e.g., Bill Johnson’s

Restaurants, Inc. v. NLRB, 461 U.S. 731, 741 (1983)(“[T]he right of

15

access to the courts is an aspect of the First Amendment right to

petition the Government for redress of grievances.”); City of

Lafayette v. Louisiana Power & Light Co., 435 U.S. 389, 399

(1978)(two correlative principles led the Noerr Court to hold that

one’s concerted efforts to influence lawmakers to enact legislation

beneficial to himself or detrimental to his competitors was not

within the scope of the antitrust laws: “The first is that a

contrary construction would impede open communication between the

polity and the lawmakers which is vital to the functioning of a

representative democracy. Second, ‘and of at least equal

significance’ is the threat to the constitutionally protected right

of petition which a contrary construction would entail.”) (quoting

Noerr Motor Freight, Inc., 365 U.S. at 137-38); Continental Ore Co.

v. Union Carbide & Carbon Corp., 370 U.S. 690, 707 (1962)(“imputing

to the Sherman Act a purpose to regulate political activity . . .

would have encountered serious constitutional barriers”); Barton’s

Disposal Serv., Inc. v. Tiger Corp., 886 F.2d 1430, 1435-36 (5th

Cir. 1989)(“The . . . doctrine recognizes that, under the First

Amendment, business entities have the right to advocate policies to

federal, state and local government bodies that may destroy

competitors.”); see also von Kalinowski, supra.

Correspondingly, the Noerr-Pennington doctrine also reflects

the view that Congress did not intend the Sherman Act to reach

governmental action or the political process. See Noerr Motor

Freight Inc., 365 U.S. at 139 (“A construction of the Sherman Act

that could disqualify people from taking a public position on

16

matters in which they are financially interested would thus deprive

the government of a valuable source of information and . . .

deprive the people of their right to petition in the very instances

in which that right may be of the most importance to them.”); City

of Columbia v. Omni Outdoor Advertising, Inc., 499 U.S. 365, 380

(1991)(the Noerr-Pennington “doctrine, like Parker, rests

ultimately upon a recognition that the antitrust laws, ‘tailored as

they are for the business world, are not at all appropriate for

application in the political arena.’”)(quoting Noerr Motor Freight,

Inc., 365 U.S. at 141); Coastal States Mktg., Inc. v. Hunt, 694

F.2d 1358, 1363-64 and n.16 (5th Cir.1983)(the Sherman Act does not

reach conduct designed to foster the adoption of legislation

injurious to competitors).

Although the Noerr-Pennington doctrine is frequently referred

to as an “antitrust immunity,” it provides only a defense to

liability, not an immunity from suit. See We, Inc. v. City of

Philadelphia, 174 F.3d 322, 326 (3d Cir. 1999); accord Segni v.

Commercial Office of Spain, 816 F.2d 344, 345-46 (7th Cir. 1987).

First, the Supreme Court in McDonald v. Smith, 472 U.S. 479,

485 (1985), held that the Petition Clause of the First Amendment

does not provide absolute immunity to a defendant charged with

expressing libelous and damaging falsehoods in petitions to

government officials. The Court observed that the right to

petition “is cut from the same cloth as the other guarantees of

that Amendment, and is an assurance of a particular freedom of

17

expression,” but that it does not follow that the Framers of the

First Amendment believed that the Petition Clause provided absolute

immunity from damages for libel. McDonald, 472 U.S. at 482-83

(citing Unites States v. Cruikshank, 92 U.S. 542, 552 (1876) and

James Madison in congressional debates, 1 Annals of Cong. 738

(1789)). The Court noted that in White v. Nicholls, 44 U.S. 266,

291 (1845), after reviewing the common law, it had concluded that

the plaintiff could bring a libel action based on letters written

by the defendant urging the President to remove the plaintiff from

office as a customs inspector, if the defendant’s petition was

prompted by falsehood and the absence of probable cause. See

McDonald, 472 U.S. at 484. The Court also stated that its

decisions interpreting the Petition Clause in other contexts

indicated that the right to petition does not include absolute

immunity. See id. (citing Bill Johnson’s Restaurants, Inc., 461

U.S. at 743 (filing a complaint in court is a form of petitioning

activity, but “baseless litigation is not immunized by the First

Amendment right to petition”); Garrison v. Louisiana, 379 U.S. 64,

75 (1964)(“petitions to the President that contain intentional and

reckless falsehoods ‘do not enjoy constitutional protection’”)).

Thus, the McDonald Court concluded, “there is no sound basis for

granting greater constitutional protection to statements made in a

petition to the President than other First Amendment expressions.”

Id. at 485. After the Supreme Court’s rejection of the notion that

the protection conferred by the petition clause is absolute, “no

possible ground remains for thinking that a defense based on that

18

clause is any different -- so far as is relevant to the issue of

appealability under the collateral order doctrine -- from any other

affirmative defense.” Segni, 816 F.2d at 346; accord We, Inc., 174

F.3d at 328-29.

Second, the courts which have recognized that the denial of a

defense based on the state action doctrine of Parker v. Brown, 317

U.S. 341 (1943), may be immediately appealable by the state, its

officers, or its agents as a collateral order, have been careful

“to point out that the doctrine had been interpreted to create an

immunity from suit and not just from judgment -- to spare state

officials the burdens and uncertainties of the litigation itself as

well as the cost of an adverse judgment.” Segni, 816 F.2d at 346

(citing Commuter Transp. Systems, Inc., 801 F.2d at 1289-90 (state

action doctrine); Freeman v. Kohl & Vick Mach. Works, Inc., 673

F.2d 196 (7th Cir. 1982)(conflict of laws determination embodied in

order denying summary judgment); Chicago & North Western Transp.

Co. v. Ulery, 787 F.2d 1239 (8th Cir. 1986)(denial of qualified

immunity for private defendant in 42 U.S.C. § 1983 civil rights

case)). The possibility that the burdens of suit might deter

public officials from vigorous execution of their offices is a

consideration missing in the case of Noerr-Pennington’s protection

of private defendants from antitrust liability. See We, Inc., 174

F.3d at 329.

Accordingly, we find the reasoning of the Third and Seventh

Circuits convincing and conclude that, because the Noerr-Pennington

doctrine provides only an affirmative defense against liability,

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not a right not to stand trial, a district court judgment denying

summary judgment asserting the Noerr-Pennington defense is not an

appealable collateral order.

III. CONCLUSION

For lack of appellate jurisdiction, we dismiss Wenger’s

appeal from the district court’s order denying summary judgment.

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