# Cardtoons, L.C., an Oklahoma Limited Liability Company v. Major League Baseball Players Association, an Unincorporated Association

> Court of Appeals for the Tenth Circuit · April 7, 2000 · 208 F.3d 885

URL: https://www.frixlaw.com/law-library/cases/9492966

## Case

- **Full name:** CARDTOONS, L.C., an Oklahoma Limited Liability Company, Plaintiff-Appellant, v. MAJOR LEAGUE BASEBALL PLAYERS ASSOCIATION, an Unincorporated Association, Defendant-Appellee
- **Court:** Court of Appeals for the Tenth Circuit
- **Decided:** April 7, 2000
- **Citations:** 208 F.3d 885; 2000 Colo. J. C.A.R. 1914; 54 U.S.P.Q. 2d (BNA) 1353; 2000 U.S. App. LEXIS 6427; 2000 WL 358414
- **Precedential status:** Published
- **Opinion:** Dissent by Lucero
- **Judges:** Seymour, Tacha, Baldock, Brorby, Ebel, Kelly, Henry, Briscoe, Lucero, Murphy
- **Cited by:** 58 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/9492966

## How later opinions describe it (automated extraction)

- holding that immunity does not protect “prelitigation threats communicated solely between private parties”
- noting “the reality of intellectual property law, in which the enforcement of legal rights, and thus the invocation of the legal process, is customarily commenced by a cease-and-desist letter”

## Opinion text

LUCERO, Circuit Judge,
with whom BRORBY and BRISCOE, Circuit Judges, join, dissenting.
I cannot agree with the majority’s proposition that the First Amendment protects an owner of intellectual property rights who blindsides an adversary with a lawsuit claiming infringement of those rights, but fails to shield that same owner when a more civilized notice and demand letter is *894 sent in advance. Put another way, there is no sound basis for the conclusion that a complaint will be afforded immunity while a “cease-and-desist” letter will not, when both documents contain identical allegations. The majority’s ruling encourages, nay demands, more litigation; it requires intellectual property owners to bypass the post office on the way to the court house and avoid the letter carrier in a rush to get to the process server.
Today’s decision ignores the reality of intellectual property law, in which the enforcement of legal rights, and thus the invocation of the litigation process, is customarily commenced by a cease-and-desist letter. Consequently, the practical result of the majority’s holding will be to force parties seeking to prevent the wrongful infringement of their intellectual property rights to ambush infringers with lawsuits or risk having to defend against retaliatory tort claims. Noerr-Pennington, as that body of jurisprudence has come to be known, has been applied to immunize from state tort claims objectively reasonable petitioning activity invoking the courts. In furtherance of the First Amendment interest in the vindication of legal rights and the constitutional requirement that the right to petition be given the breathing space necessary to survive, the same immunity should be afforded to objectively reasonable allegations of infringement and threats of litigation contained in cease-and-desist letters.
I
The First Amendment guarantees “the right of the people ... to petition the Government for a redress of grievances.” U.S. Const, amend. I. Although the Supreme Court has declared the right to petition to be “among the most precious of the liberties safeguarded by the Bill of Rights,” United Mine Workers v. Illinois State Bar Ass’n, 389 U.S. 217, 222 , 88 S.Ct. 353 , 19 L.Ed.2d 426 (1967), the Court has provided only limited guidance as to the nature and scope of the protection the right affords.
A
The Supreme Court has provided some guidance as to the application of the right to petition in cases developing the Noerr-Pennington doctrine. As originally articulated by the Supreme Court, the Noerr-Pennington doctrine provides general immunity from antitrust liability under the Sherman Act to private parties who petition the government for redress of grievances, notwithstanding the anti-competitive purpose or consequences of their petitions. See Eastern R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 135-38 , 81 S.Ct. 523 , 5 L.Ed.2d 464 (1961) (establishing immunity for petitions to a state legislature); see also United Mine Workers v. Pennington, 381 U.S. 657, 670 , 85 S.Ct. 1585 , 14 L.Ed.2d 626 (1965) (extending Noerr immunity to petitions to public officials). The Court emphasized in Noerr that “[t]he right of petition is one of the freedoms protected by the Bill of Rights, and we cannot ... lightly impute to Congress an intent to invade these freedoms.” Noerr, 365 U.S. at 137-38 , 81 S.Ct. 523 .
In California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508 , 92 S.Ct. 609 , 30 L.Ed.2d 642 (1972), the Court extended immunity to “the approach of citizens or groups of them to ... courts.” Id. at 510 , 92 S.Ct. 609 (holding, in addition, that “[t]he right of access to the courts is indeed but one aspect of the right of petition”) (citing Johnson v. Avery, 393 U.S. 483, 485 , 89 S.Ct. 747 , 21 L.Ed.2d 718 (1969); Ex parte Hull, 312 U.S. 546, 549 , 61 S.Ct. 640 , 85 L.Ed. 1034 (1941)). In reaching this conclusion, the Court relied primarily on the constitutional underpinnings of the doctrine:
We conclude that it would be destructive of rights of association and of petition to hold that groups with common interests may not, without violating the antitrust laws, use the channels and procedures of *895 state and federal agencies and courts to advocate their causes and points of view respecting resolution of their business and economic interests vis-a-vis their competitors.
Id. at 510-11, 92 S.Ct. 609 ; see also City of Lafayette v. Louisiana Power & Light Co., 435 U.S. 389 , 399 n. 17, 98 S.Ct. 1123 , 55 L.Ed.2d 364 (1978) (noting that “[c]ases subsequent to Pennington have emphasized the possible constitutional infirmity in the antitrust laws that a contrary construction would entail in light of the serious threat to First Amendment freedoms that would have been presented”) (citations omitted). When applying the Noerr-Pennington doctrine in the antitrust context, this Circuit has placed similar emphasis on the First Amendment rights the doctrine is designed to protect. See, e.g., Zimomra v. Alamo Renh-A-Car, Inc., 111 F.3d 1495 , 1503 (10th Cir.1997); Instructional Sys. Dev. Corp. v. Aetna Cas. & Sur. Co., 817 F.2d 639, 650 (10th Cir.1987). 9
Because of its foundation in the First Amendment right to petition, the Supreme Court has applied the Noerr-Pennington doctrine, by analogy, outside of its aborigine roots in antitrust law. In NAACP v. Claiborne Hardware Co., 458 U.S. 886, 889-91 , 102 S.Ct. 3409 , 73 L.Ed.2d 1215 (1982), for example, merchants brought claims of common law malicious interference with business and violations of state statutory labor and antitrust laws against participants in a civil rights boycott. Comparing by analogy those common law and statutory claims to the economic regulation at issue in Noerr , the Court concluded that nonviolent boycotting activities were entitled to similar First Amendment protections because “a major purpose of the boycott ... was to influence governmental action,” and, unlike the petitioning activity in Noerr , the purpose was to vindicate important Fourteenth Amendment rights. See id. at 914-15 , 102 S.Ct. 3409 . The following year, the Court again applied the Noerr-Pennington doctrine outside of the antitrust context. In Bill Johnson’s Restaurants, Inc. v. NLRB, 461 U.S. 731, 734 , 103 S.Ct. 2161 , 76 L.Ed.2d 277 (1983), a restauranteur filed a civil suit seeking to enjoin employees from picketing his restaurant. The employees responded by filing a complaint with the National Labor Relations Board alleging the civil suit was a retaliatory action in violation of the National Labor Relations Act (“NLRA”), 29 U.S.C. § 158 (a)(1) & (4). See id. at 734-35 , 103 S.Ct. 2161 . The question before the Supreme Court was whether, under the NLRA, the Board could enjoin the civil suit against the employees. See id. at 740-43 , 103 S.Ct. 2161 . Based on the right to petition recognized in California Motor Transport, as well as a line of cases holding that the NLRA does not preempt state civil remedies for conduct deeply rooted in local concerns, the Court held that the Board could not enjoin a well-founded lawsuit. See id.
In light of Claiborne Hardware and Bill Johnson’s Restaurants, there can be little doubt that Noerr-Pennington immunity, as amplified by California Motor Transport, is mandated by the First Amendment right to petition, irrespective of any independent statutory basis it might also have, and “Noerr-Pennington immunity” has evolved into an umbrella term for First Amendment petitioning immunity. Cf. First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765 , 792 n. 31, 98 S.Ct. 1407 , 55 L.Ed.2d 707 (1978) (citing California Motor Transport and Noerr for the proposition that “the First Amendment protects the right of corporations to petition legislative and administrative bodies”); NAACP *896 v. Button, 371 U.S. 415, 430-31 , 83 S.Ct. 328 , 9 L.Ed.2d 405 (1963) (citing Noerr’s First Amendment protection of the railroads’ governmental solicitations to support the proposition that the First Amendment also protects associating for litigation purposes). 10 Consistent with the Supreme Court’s constitutional characterization of the doctrine, numerous other courts have applied Noerr-Pennington immunity, either directly or by analogy, to shield defendants from state tort claims. See, e.g., Cheminor Drugs, Ltd. v. Ethyl Corp., 168 F.3d 119, 128-29 (3d Cir.1999); Video Int’l Prod., Inc. v. Warner-Amex Cable Communications, Inc., 858 F.2d 1075, 1082-84 (5th Cir.1988); Havoco of Am., Ltd. v. Hollobow, 702 F.2d 643 , 649-50 (7th Cir.1983); Missouri v. National Org. of Women, 620 F.2d 1301, 1319 (8th Cir.1980); Pennwalt Corp. v. Zenith Lab., Inc., 472 F.Supp. 413, 423-24 (E.D.Mich.1979), appeal dismissed, 615 F.2d 1362 (6th Cir.1980); Sierra Club v. Butz, 349 F.Supp. 934, 937-39 (N.D.Cal.1972); Pacific Gas & Elec. Co. v. Bear Stearns & Co., 50 Cal.3d 1118 , 270 Cal.Rptr. 1 , 791 P.2d 587, 595-98 (1990); Protect Our Mountain Env’t, Inc. v. District Court, 677 P.2d 1361, 1364-69 (Colo.1984) (en banc).
I agree with the Fifth Circuit that “[t]here is simply no reason that a common-law tort doctrine can any more permissibly abridge or chill the constitutional right of petition than can a statutory claim such as antitrust.” Video Int’l Prod., 858 F.2d at 1084 . Therefore, I would conclude that the MLBPA is shielded from Card-toons’s state tort claims insofar as those claims arise from its protected petitioning activity. 11 This conclusion requires the resolution of two further questions: Does the Champs letter constitute petitioning activity within the scope of the First Amendment; and if so, to what extent does the Petition Clause protect MLBPA from state tort claims premised on the Champs letter?
B
The First Amendment refers to “petitions to the government.” The paradigmatic petition to the courts is a complaint. Cf. McDonald v. Smith, 472 U.S. 479, 484 , 105 S.Ct. 2787 , 86 L.Ed.2d 384 (“[F]iling a complaint in court is a form of petitioning activity.”). At issue in this case, however, is a cease-and-desist letter between private parties alleging infringement of intellectual property rights and threatening a lawsuit. Based on the interests served by the Petition Clause and the requirement that First Amendment rights be given “breathing space,” the concept of petitioning activity must embrace such a cease-and-desist letter.
The Supreme Court has not considered this precise issue, but has suggested that the application of immunity to activities, *897 such as threats of litigation, incidental to the normal processes of litigation would be consistent with its holdings. See Allied Tube & Conduit Corp. v. Indian Head, Inc., 486 U.S. 492, 508 , 108 S.Ct. 1931 , 100 L.Ed.2d 497 (1988)(holding a “claim of Noerr immunity cannot be dismissed on the ground that the conduct at issue involved no ‘direct’ petitioning of government officials, for Noerr itself immunized a form of ‘indirect’ petitioning”) (citation omitted); cf. Continental Ore v. Union Carbide & Carbon Corp., 370 U.S. 690, 707 , 82 S.Ct. 1404 , 8 L.Ed.2d 777 (1962) (distinguishing Noerr because the defendant in the case at bar was “engaged in private commercial activity, no element of which involved seeking to procure the ... enforcement of laws”). More significantly, “[t]he first amendment interests involved in private litigation” as articulated in Bill Johnson’s Restaurants, 461 U.S. at 743 , support a concept of petitioning activity that includes actions incidental to litigation. These interests include “compensation for violated rights and interests, the psychological benefits of vindication, [and] public airing of disputed facts.” Id. So conceived, the right to petition the courts serves, in the context of private litigation, the purpose of vindicating legal rights. Put another way, conduct inducing administrative and judicial action “is protected by the firmly rooted principle, endemic to a democratic government, that enactment of and adherence to the law is the responsibility of all.” Brownsville Golden Age Nursing Home, Inc. v. Wells, 839 F.2d 155, 160 (3d Cir.1988) (applying petitioning immunity to the defendant’s notification to government agencies and mobilization of public awareness concerning violations of the law at a nursing home).
Cease-and-desist letters threatening recourse to the judicial process if the alleged infringement of intellectual property rights continues, no less than complaints seeking redress for such an infringement, promote the interests served by the right to petition the courts: They vindicate legal rights and promote adherence to important laws of commerce. Cease-and-desist letters are frequently used by businesses and individuals to protect and vindicate their intellectual property rights. See generally Ronald B. Coolley, Notifications of Infringement and Their Consequences, 77 J. Pat. & Trademark Off. Soc’y 246, 246 (1995) (describing notification to suspected intellectual property infringers as a “common reaction” of rights holders). While the immediate purpose of cease-and-desist letters may not be compensation or psychological benefit, cf. Bill Johnson’s Restaurants, 461 U.S. at 743 , 103 S.Ct. 2161 , they nonetheless seek vindication and financial gain through the protection of significant economic interests. They do so by demanding adherence to the law, a demand every citizen has the right to assert. Cf. Brownsville, 839 F.2d at 160 . And although this demand is made directly, rather than via a governmental mechanism, its significance and efficacy are derived from the existence of laws creating and protecting intellectual property rights and the existence of courts to enforce those laws, not the brooding threat of force. Nothing could better demonstrate this point than the fact that the notice of wrongdoing provided by the Champs letter is a condition precedent to MLBPA bringing a colorable claim against Champs for contributory infringement of publicity rights. See, e.g., Misut v. Mooney, 124 Misc.2d 95 , 475 N.Y.S.2d 233, 236 (N.Y.Sup.Ct.1984); Maynard v. Port Publications, Inc., 98 Wis.2d 555 , 297 N.W.2d 500, 507 (1980). In sum, the Champs letter constitutes a use of “the channels and procedures of state and federal ... courts to advocate [the author’s] causes and points of view respecting resolution of [its] business and economic interests vis-a-vis [its] competitors.” California Motor Transport, 404 U.S. at 511 , 92 S.Ct. 609 .
Applying petitioning immunity to widely-used methods of enforcing legal rights that precede any direct communication with the courts is also compelled by the Supreme Court’s pronouncement that *898 First Amendment rights require “breathing space” to survive.- See New York Times Co. v. Sullivan, 376 U.S. 254, 272 , 84 S.Ct. 710 , 11 L.Ed.2d 686 (1964); Button, 371 U.S. at 433 , 83 S.Ct. 328 . That principle was applied, although not by name, in Brotherhood of R.R. Trainmen v. Virginia State Bar, 377 U.S. 1 , 84 S.Ct. 1113 , 12 L.Ed.2d 89 (1964). Rejecting the Bar Association’s effort to enjoin a union from advising members to obtain legal counsel before settling injury claims and referring them to selected attorneys, the Court held that “[t]he State can no more keep these workers from using their cooperative plan to advise one another than it could use more direct means to bar them from resorting to the courts to vindicate their legal rights. The right to petition the courts cannot be so handicapped.” Id. at 7 , 84 S.Ct. 1113 ; see also United Trans. Union v. State Bar of Michigan, 401 U.S. 576, 585-86 , 91 S.Ct. 1076 , 28 L.Ed.2d 339 (1971); Feminist Women’s Health Ctr., Inc. v. Mohammad, 586 F.2d 530, 543 (5th Cir.1978). The application of the concept of “breathing space” to the right to petition the courts is not limited to situations in which actions incidental to litigation implicate associatio'nal rights. See Pacific Gas & Elec., 270 Cal.Rptr. 1 , 791 P.2d at 595-98 (applying the concept of “breathing space” without reference to associational rights in reaching the conclusion that the Petition Clause prohibits premising tort liability on the defendant’s conduct inducing another to bring a meritorious lawsuit); cf. South Dakota v. Kansas City Southern Indus., Inc., 880 F.2d 40 , 53 (8th Cir.1989) (holding, without reference to associational rights, that the defendant’s assumed assistance to litigants in the underlying suit “did not, as a matter of law, constitute ‘sham’ petitioning and was fully protected by the first amendment”).
Like the incidental litigation activity in the cases just cited, cease-and-desist letters notifying the recipient of the infringement of intellectual property rights and threatening legal action, “must also be protected if the right of access to the courts is to have significance.” The Consortium, Inc. v. Knoxville Int’l Energy Exposition, 563 F.Supp. 56, 59 (E.D.Tenn.1983) (citing Pennwalt Corp., 472 F.Supp. at 413 ). As discussed, such letters are often the first formal step in the process of enforcing the law of intellectual property and vindicating economic interests. Frequently this step is quickly followed by the filing of a complaint with a court, be it by the rights holder for damages and injunctive relief or the recipient for declaratory judgment. See Coolley at 246. That is precisely what occurred in this case. Upon receiving the Cardtoons letter and notice of the Champs letter, Cardtoons preempted the threatened litigation by filing an action for declaratory relief, and MLBPA responded with counterclaims. By permitting liability under state common law for allegations and threats contained in cease-and-desist letters, while prohibiting liability for identical allegations made in a complaint filed with a court, the majority ignores the central. role cease-and-desist letters play in the enforcement of intellectual property rights. The resulting bright-line rule chills the right to petition the courts by handicapping activity immediately precedent to, and intimately associated with, recourse to the judicial process. 12 It is *899 just such a result that the concept of “breathing space,” born of the practical reality of the environment in which First Amendment rights are exercised, is meant to prevent.
In addition to sustaining the vitality of the fundamental right to petition and furthering the interests that right is intended to serve, the acknowledgment that Petition Clause immunity applies to cease-and-desist letters such as the one before us is consistent with sound public policy. As commentators have observed, this acknowledgment facilitates efforts to resolve disputes before resort is had to litigation. See Phillip E. Areeda & Herbert Hoven-kamp, Antitrust Law § 205e at 237 (rev. ed.1997) (arguing that withholding immunity from prelitigation communication would curb practices that “provide useful notice and facilitate the resolution of controversies”); Herbert Hovenkamp, Federal Antitrust Policy § 18.3d at 644 (1994) (immunizing prelitigation threats is vital to “[o]ur entire dispute resolution process[, which] is designed to encourage people to resolve their differences if possible before litigating”).
Applying petitioning immunity to a cease-and-desist letter is not novel. Within the antitrust context, numerous courts have applied Noerr-Pennington immunity to claims arising from cease-and-desist letters, threats of litigation, and other pre-litigation enforcement efforts. See, e.g., Glass Equip. Dev., Inc. v. Besten, Inc., 174 F.3d 1337, 1343-44 (Fed.Cir.1999); CVD, Inc. v. Raytheon Co., 769 F.2d 842, 850-51 (1st Cir.1985); Miller Pipeline Corp. v. British Gas PLC, 69 F.Supp.2d 1129, 1138 (S.D.Ind.1999); PrimeTime 24 Joint Venture v. National Broad. Co., Inc., 21 F.Supp.2d 350, 356 (S.D.N.Y.1998); The Consortium, 563 F.Supp. at 59 ; Outboard Marine Corp. v. Pezetel, 474 F.Supp. 168, 174 (D.Del.1979); cf. Alexander v. National Farmers Org., 687 F.2d 1173, 1200 (8th Cir.1982) (noting that there may be situations in which threats of litigation against a competitor’s customers would be protected under Noerr-Pennington). Likewise, outside of the antitrust context, federal district courts have afforded immunity from state common law claims based on similar pre-litigation efforts to enforce legal rights. See, e.g., Matsushita Elec. Corp. v. Loral Corp., 974 F.Supp. 345, 359 (S.D.N.Y.1997); Aircapital Cablevision, Inc. v. Starlink Communications Group, Inc., 634 F.Supp. 316, 325 (D.Kan.1986); Pennwalt Corp., 472 F.Supp. at 424 .
In order to provide breathing space to the First Amendment right to petition the courts, further the interests that right was designed to serve, and promote the public interest in efficient dispute resolution, I would follow other federal courts and accord cease-and-desist letters alleging infringement of intellectual property rights and threatening legal recourse the same level of immunity from tort liability as a complaint making the same allegations.
C
That immunity is not, of course, absolute. In determining the proper scope of petition clause immunity for activities invoking the judicial process, the Noerr-Pen-nington doctrine once again provides the starting point. While broad and extensive, Noerr-Pennington immunity is not a shield for a petitioner whose conduct, although “ostensibly directed toward influencing governmental action, is a mere sham to cover what is actually nothing more than an attempt to interfere directly with the business relationships of a competitor.” Noerr, 365 U.S. at 144 , 81 S.Ct. 523 . The Supreme Court has established a two-part definition of sham litigation:
*900 First, the lawsuit must be objectively baseless in the sense that no reasonable litigant could realistically expect success on the merits. If an objective litigant could conclude that the suit is reasonably calculated to elicit a favorable outcome, the suit is immunized under Noerr , and an antitrust claim premised on the sham exception must fail. Only if challenged litigation is objectively merit-less may a court examine the litigant’s subjective motivation. Under this second part of our definition of sham, the court should focus on whether the baseless lawsuit conceals “an attempt to interfere directly with the business relationships of a competitor,” Noerr, 365 U.S. at 144 , 81 S.Ct. 523 , through the “use [of] the governmental process — as opposed to the outcome of that process — as an anti-competitive weapon,” Columbia v. Omni Outdoor Advertising, Inc., 499 U.S. 365, 380 , 111 S.Ct. 1344 , 113 L.Ed.2d 382 (1991). This two-tiered process requires the plaintiff to disprove the challenged lawsuit’s legal viability before the court will entertain evidence of the suit’s economic viability.
Professional Real Estate Investors, Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49, 60-61 , 113 S.Ct. 1920 , 123 L.Ed.2d 611 (1993). To ascertain “baselessness,” a court must consider whether the litigant had “probable cause” to initiate the legal action. Id. at 62 , 113 S.Ct. 1920 . If there is probable cause, the defendant automatically enjoys Noerr-Pennington immunity, and the second, subjective motivation prong of the Professional Real Estate test becomes irrelevant. See id. at 63 , 113 S.Ct. 1920 . Probable cause to sue may exist when the law is unsettled or when an “action [is] arguably “warranted by existing law’ or at the very least [is] based on an objectively “good faith argument for the extension ... of existing law.’ ” Id. at 65 , 113 S.Ct. 1920 (quoting Fed.R.Civ.P. 11).
In establishing the requirements for the sham exception to the Noerr-Pennington doctrine, the Court emphasized that “[w]hether applying Noerr as an antitrust doctrine or invoking it in other contexts, we have repeatedly reaffirmed that evidence of anti-competitive intent or purpose alone cannot transform otherwise legitimate activity into a sham.” Professional Real Estate, 508 U.S. at 59 , 113 S.Ct. 1920 (emphasis added). As an example of the emphasis on objective reasonableness as the linchpin of petitioning immunity outside the antitrust context, Professional Real Estate cites Bill Johnson’s Restaurants, 461 U.S. at 743 , 103 S.Ct. 2161 . In that case, the Court held “[t]he filing and prosecution of a well-founded lawsuit may not be enjoined as an unfair labor practice, even if it would not have been commenced but for the plaintiffs desire to retaliate against the defendant for exercising rights protected by the [National Labor Relations] Act.” Bill Johnson’s Restaurants, 461 U.S. at 743 , 103 S.Ct. 2161 . 13 Thus, the Supreme Court has consistently held that petitioning activity invoking the judicial process is deserving of protection unless it is objectively baseless and motivated by an unlawful purpose.
In accordance with Professional Real Estate , I would conclude that MLBPA is entitled to immunity from all of Card-toons’s state tort claims arising from the Champs letter unless the allegations of wrongdoing and threats of litigation contained in the letter were objectively baseless, in the sense of lacking probable cause, and employed primarily for improper purposes.
Such a holding would be consistent with McDonald v. Smith, 472 U.S. 479 , 105 S.Ct. 2787 , 86 L.Ed.2d 384 (1985), in which the Court addressed whether petitioning activity directed to the executive branch of government — specifically, a letter to the President — should be immune from a state *901 tort claim of libel. Relying on White v. Nicholls, 44 U.S. (3 How.) 266 , 11 L.Ed. 591 (1845), and New York Times Co. v. Sullivan, 376 U.S. 254 , 84 S.Ct. 710 , 11 L.Ed.2d 686 (1964), the Court held that the petitioning activity was not immune from liability for libel if carried out with actual malice, that is, “ ‘falsehood and the absence of probable cause.’ ” McDonald, 472 U.S. at 484 , 105 S.Ct. 2787 (quoting White, 44 U.S. (3 How.) at 291 ); see also New York Times, 376 U.S. at 279-80 , 84 S.Ct. 710 (defining actual malice as “with knowledge that it was false or with reckless disregard of whether it was false or not”). In a statement of particular relevance to this case, the Court noted that its conclusion that the First Amendment does not provide absolute immunity for petitions to the government was consistent with the principle at the heart of the Noerr-Pennington sham litigation test: “ ‘[B]aseless litigation is not immunized by the First Amendment right to petition.’ ” McDonald at 484, 105 S.Ct. 2787 (quoting Bill Johnson’s Restaurants, 461 U.S. at 743 , 103 S.Ct. 2161 ; citing California Motor Transport, 404 U.S. at 513 , 92 S.Ct. 609 ). 14
To the extent there are any practical differences between McDonald’s “actual malice” standard and Professional Real Estate’s “objectively baseless” standard, I would find the latter more applicable to petitioning activity invoking the judicial process through allegations of wrongdoing. Moreover, I reject Cardtoons’s suggestion that at the very least the McDonald standard should be applied in determining whether MLBPA is immune from the libel claim. Applying different standards to determine a defendant’s immunity from different tort claims arising from the same petitioning activity would inject unnecessary confusion into the analysis of Petition Clause immunity, and perhaps even undermine such immunity by producing conflicting results. In this case, for example, Cardtoons labels as libelous the assertion in the Champs letter that “[MLBPA] believe[s] that the activities of [Cardtoons] violate the valuable property rights of publicity of the MLBPA and the players themselves.” (Appellant’s App. at 10.) This statement is coextensive with the allegations of wrongdoing — participating in those activities — on which the threats of litigation are based. Doctrinal consistency requires that the issue of whether these statements will be afforded Petition Clause immunity be determined by a single standard — the objectively baseless standard. 15
II
Applying this analytical framework to the case at bar, I agree with the district court’s conclusion that the allegations of infringement and threats of litigation contained in the Champs letter were objectively reasonable. Therefore, I would affirm.
. I therefore reject the Fifth Circuit’s assertion that Noerr "was not a first amendment decision.” Coastal States Mktg., Inc. v. Hunt, 694 F.2d 1358, 1364-65 (5th Cir.1983). Indeed, the Fifth Circuit itself has taken inconsistent positions. See Video Int’l Prod., Inc. v. Warner-Amex Cable Communications, Inc., 858 F.2d 1075, 1083 (5th Cir.1988) (holding that the purpose of the Noerr-Pennington doctrine is to protect the First Amendment right to petition the government).
. Nor is the application of petitioning immunity limited to associational or political activity. The Court has long held that "[t]he grievances for redress of which the right of petition was insured, and with it the right of assembly, are not solely religious or political ones.” Thomas v. Collins, 323 U.S. 516, 531 , 65 S.Ct. 315 , 89 L.Ed. 430 (1945); see also Illinois State Bar Ass’n, 389 U.S. at 223 , 88 S.Ct. 353 (rejecting the contention that ‘‘the principles announced in Button were applicable only to litigation for political purposes”) (citing Brotherhood of R.R. Trainmen v. Virginia, 377 U.S. 1, 8 , 84 S.Ct. 1113 , 12 L.Ed.2d 89 (1964)). For example, in Bill Johnson’s Restaurants, 461 U.S. at 743 , 103 S.Ct. 2161 , the Court afforded immunity to an individual litigant seeking to vindicate private economic interests. Although in Martin v. City of Del City, 179 F.3d 882, 886 (10th Cir.1999), we held that a government employee alleging he was terminated in retaliation for petitioning for the redress of grievances must show that the petition touches on matters of public concern, Martin's public concern requirement is inapplicable here because it was developed in light of the government's substantial interest in maintaining an efficient workplace.
. To the extent Grip-Pak, Inc. v. Illinois Tool Works, Inc., 694 F.2d 466, 471-72 (7th Cir.1982), holds to the contrary, I would reject the holding of that case. We also note that another panel of that circuit overlooked or ignored the Grip-Pak decision in reaching a result consistent with our own. See Havoco of Am., Ltd., 702 F.2d at 649-50.
. This immediate association with the judicial process distinguishes the Champs letter from the activity at issue in Allied Tube and Conduit Corp., 486 U.S. at 492 , 108 S.Ct. 1931 . The Court in Allied held that efforts to influence the standard-setting process of a private trade association did not enjoy Noerr immunity. See id. at 509-10 , 108 S.Ct. 1931 . However, it "expressly limited [its holding] to cases where an economically interested party exercises decisionmaking authority in formulating a product standard for a private association that comprises market participants," id. at 511 n. 13, 108 S.Ct. 1931 (citation and internal quotations omitted), indicating that this holding would not encompass, and therefore not preclude from immunity, efforts to influence “all private standard-setting associations.” Id. With such repeated and explicit limitations, it is clear the Court did not foreclose the application of immunity to all indirect petitioning activities, such as to non- *899 govemmental associations as in Allied, or, as here, to cease-and-desist letters. On the contrary, as discussed, the Court emphasized a "claim of Noerr immunity cannot be dismissed on the ground that the conduct at issue involved no 'direct' petitioning of government officials, for Noerr itself immunized a form of ‘indirect’ petitioning.” Id. at 503, 108 S.Ct. 1931 (citation omitted).
. Bill Johnson’s Restaurants went on to hold that the employee could proceed with his or her unfair labor practices case if the employer did not prevail in its state law claim. 461 U.S. at 747 , 103 S.Ct. 2161 .
. Contrary to the majority's suggestion, McDonald 's conclusion that individuals do not enjoy absolute immunity from state common law claims arising from statements made in petitions to the government does not mean that there is no constitutional protection from such claims. Rather, McDonald makes it clear that state libel actions arising from petitioning activity cannot proceed unless the elements of libel are consistent with the constitutionally-mandated actual malice standard. 472 U.S. at 484-85 , 105 S.Ct. 2787 .
. To the extent a libel claim is based on assertions in a cease-and-desist letter other than the legal and factual bases for the allegations of infringement and threats of litigation, the McDonald standard might be appropriate.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9492966. Public record. Not legal advice.