Salem Grain Co. v. Consolidated Grain & Barge Co. ( 2017 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/13/2017 08:11 AM CDT
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Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
SALEM GRAIN CO. v. CONSOLIDATED GRAIN & BARGE CO.
Cite as 297 Neb. 682
Salem Grain Company, Inc., appellant, v.
Consolidated Grain and Barge Co.
et al., appellees.
___ N.W.2d ___
Filed September 8, 2017. No. S-16-995.
1. Motions to Dismiss: Pleadings: Appeal and Error. A district court’s
grant of a motion to dismiss on the pleadings is reviewed de novo,
accepting the allegations in the complaint as true and drawing all rea-
sonable inferences in favor of the nonmoving party.
2. Statutes: Appeal and Error. Statutory interpretation presents a ques-
tion of law, for which an appellate court has an obligation to reach
an independent conclusion irrespective of the decision made by the
court below.
3. Federal Acts: Vendor and Vendee. Under the doctrine established by
Eastern R. Conf. v. Noerr Motors, 365 U.S. 127, 81 S. Ct. 523, 5 L. Ed.
2d 464 (1961), and Mine Workers v. Pennington, 381 U.S. 657, 85 S. Ct.
1585, 14 L. Ed. 2d 626 (1965), federal antitrust laws do not regulate the
conduct of private individuals in seeking anticompetitive action from
the government.
4. Constitutional Law: Federal Acts. The doctrine established by Eastern
R. Conf. v. Noerr Motors, 365 U.S. 127, 81 S. Ct. 523, 5 L. Ed. 2d 464
(1961), and Mine Workers v. Pennington, 381 U.S. 657, 85 S. Ct. 1585,
14 L. Ed. 2d 626 (1965), is based on both the First Amendment’s peti-
tion clause and the statutory interpretation of federal antitrust laws.
5. Vendor and Vendee. The application of the doctrine established by
Eastern R. Conf. v. Noerr Motors, 365 U.S. 127, 81 S. Ct. 523, 5 L.
Ed. 2d 464 (1961), and Mine Workers v. Pennington, 381 U.S. 657, 85
S. Ct. 1585, 14 L. Ed. 2d 626 (1965), to claims under antitrust laws is
ultimately based on the fact that antitrust laws, tailored as they are for
the business world, are not at all appropriate for application in the politi-
cal arena.
6. Vendor and Vendee: Conspiracy. There is no “conspiracy” exception
to the doctrine established by Eastern R. Conf. v. Noerr Motors, 365
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SALEM GRAIN CO. v. CONSOLIDATED GRAIN & BARGE CO.
Cite as 297 Neb. 682
U.S. 127, 81 S. Ct. 523, 5 L. Ed. 2d 464 (1961), and Mine Workers v.
Pennington, 381 U.S. 657, 85 S. Ct. 1585, 14 L. Ed. 2d 626 (1965),
when applied to claims under antitrust laws.
7. Constitutional Law: Vendor and Vendee: Conspiracy. The line to
determine when the conspiracy exception applies is based not on whether
a claim is antitrust in nature, but on which theory the application of the
doctrine established by Eastern R. Conf. v. Noerr Motors, 365 U.S. 127,
81 S. Ct. 523, 5 L. Ed. 2d 464 (1961), and Mine Workers v. Pennington,
381 U.S. 657, 85 S. Ct. 1585, 14 L. Ed. 2d 626 (1965), is predicated on,
either the First Amendment or the antitrust laws.
8. Consumer Protection. Neb. Rev. Stat. § 59-1602 (Reissue 2010) mir-
rors the language of 15 U.S.C. § 45(a)(1) (2012).
9. ____. Neb. Rev. Stat. § 59-1603 (Reissue 2010) is construed in accord­
ance with 15 U.S.C. § 1 (2012).
10. Consumer Protection: Intent. The Consumer Protection Act, Neb. Rev.
Stat. §§ 59-1601 to 59-1622 (Reissue 2010 & Cum. Supp. 2012), was
intended to be an antitrust measure to protect Nebraska consumers from
monopolies and price-fixing conspiracies.
11. Consumer Protection. The Consumer Protection Act, Neb. Rev. Stat.
§§ 59-1601 to 59-1622 (Reissue 2010 & Cum. Supp. 2012), is tailored
for the business world, not for the political arena.
12. Pleadings. The doctrine established by Eastern R. Conf. v. Noerr
Motors, 365 U.S. 127, 81 S. Ct. 523, 5 L. Ed. 2d 464 (1961), and Mine
Workers v. Pennington, 381 U.S. 657, 85 S. Ct. 1585, 14 L. Ed. 2d 626
(1965), is an affirmative defense.
13. Rules of the Supreme Court: Pleadings. An affirmative defense may
be asserted in a motion filed pursuant to Neb. Ct. R. Pldg. § 6-1112(b)(6)
when the defense appears on the face of the complaint.
14. Appeal and Error. In the absence of plain error, an appellate court con-
siders only claimed errors which are both assigned and discussed.
15. Rules of the Supreme Court: Pleadings: Notice. The Nebraska Rules
of Pleading in Civil Actions, like the federal rules, have a liberal plead-
ing requirement for both causes of action and affirmative defenses, but
the touchstone is whether fair notice was provided.
16. Appeal and Error. An appellate court is not obligated to engage in an
analysis that is not necessary to adjudicate the case and controversy
before it.
17. Conspiracy: Words and Phrases. A civil conspiracy is a combination
of two or more persons to accomplish by concerted action an unlaw-
ful or oppressive object, or a lawful object by unlawful or oppres-
sive means.
18. Actions: Aiding and Abetting. A claim of aiding and abetting is that
in addition to persons who actually participate in concerted wrongful
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SALEM GRAIN CO. v. CONSOLIDATED GRAIN & BARGE CO.
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action, persons who aid, abet, or procure the commission thereof, are
subject to a civil action therefor.
19. Actions: Conspiracy: Aiding and Abetting: Liability. Claims of civil
conspiracy and aiding and abetting are essentially methods for imposing
joint and several liability on all actors who committed a tortious act or
any wrongful acts in furtherance thereof.
20. Aiding and Abetting: Torts. A claim of aiding and abetting requires the
presence of an underlying tort.
21. Conspiracy: Torts. A “conspiracy” is not a separate and independent
tort in itself, but, rather, is dependent upon the existence of an underly-
ing tort. Without such underlying tort, there can be no claim for relief
for a conspiracy to commit the tort.
22. Conspiracy: Aiding and Abetting. A statutory violation alone is insuf-
ficient to sustain a claim of civil conspiracy or aiding and abetting.
Appeal from the District Court for Richardson County:
Daniel E. Bryan, Jr., Judge. Affirmed.
David A. Domina and Christian T. Williams, of Domina Law
Group, P.C., L.L.O., for appellant.
Terry C. Dougherty, Audrey R. Svane, and Kari A.F. Scheer,
of Woods & Aitken, L.L.P., for appellee Consolidated Grain
and Barge Co.
Robert S. Keith and Alexis M. Wright, of Engles, Ketcham,
Olson & Keith, P.C., for appellees Gary Jorn, Kevin Malone,
and Beth Sickel.
Bonnie M. Boryca and Patrick R. Guinan, of Erickson &
Sederstrom, P.C., for appellees Becky Cromer, Ray Joy, Bart
Keller, and Charles Radatz.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
K elch, and Funke, JJ.
Funke, J.
I. NATURE OF CASE
Salem Grain Company, Inc. (Salem), appeals an order
from the district court for Richardson County dismissing its
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SALEM GRAIN CO. v. CONSOLIDATED GRAIN & BARGE CO.
Cite as 297 Neb. 682
complaint with prejudice for failure to state a claim upon
which relief could be granted. The court found that all appel-
lees were entitled to immunity from Salem’s claims under
Nebraska’s Consumer Protection Act1 (NCPA) and the Noerr-
Pennington doctrine2 and that Salem’s claims of conspiracy
and aiding and abetting required an underlying tort to be
actionable. Accordingly, the court ruled that any amendments
to the pleading would be futile. We affirm.
II. FACTS
Salem operates commercial grain warehouses and elevators
and owns trading businesses throughout southeast Nebraska,
including a location in Richardson County, Nebraska.
Consolidated Grain and Barge Co. (CGB) also operates com-
mercial grain warehouses. In 2012, CGB expressed an interest
in expanding its operations to the Falls City, Nebraska, area,
and it now owns and operates a commercial grain warehouse
in Richardson County, which is in competition with Salem’s
Richardson County warehouse.
At the time of the alleged actions, the other appellees
were involved with various organizations in Falls City: Becky
Cromer was the executive director of the Falls City Economic
Development and Growth Enterprise (EDGE), a private orga-
nization; Gary Jorn, Ray Joy, and Bart Keller were members
of EDGE; Kevin Malone was a member of EDGE, the Falls
City Community Redevelopment Authority (CRA), the Citizen
Advisory Review Committee (CARB), and the Falls City
Planning and Zoning Board; Charles Radatz was a member
of EDGE and the CRA; and Beth Sickel was a member of
1
Neb. Rev. Stat. §§ 59-1601 to 59-1622 (Reissue 2010 & Cum. Supp.
2012).
2
See Eastern R. Conf. v. Noerr Motors, 365 U.S. 127, 81 S. Ct. 523, 5 L.
Ed. 2d 464 (1961), and Mine Workers v. Pennington, 381 U.S. 657, 85 S.
Ct. 1585, 14 L. Ed. 2d 626 (1965).
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SALEM GRAIN CO. v. CONSOLIDATED GRAIN & BARGE CO.
Cite as 297 Neb. 682
EDGE, the CRA, and the CARB. Each of these appellees were
sued in their individual capacities.
The remaining defendants, “John Doe I-IV and Jane Doe
I-IV,” were members of EDGE, the CRA, or the CARB
that may have participated in the alleged wrongful acts
against Salem.
Salem filed a complaint alleging that each of the individual
appellees engaged in a pattern of behavior—through a series of
contracts, combinations, and conspiracies—with the intent to
deprive it of information, an opportunity to be heard, and due
process of law, which caused Salem financial damages. More
specifically, it alleged that its damages were a result of the
unfair increased competition that CGB brought to the region
through the special privileges it received from Falls City and
that the individual appellees aided and abetted in concealing
from Salem and the community those benefits.
Salem asserts that the individual appellees’ pattern of
behavior included preventing legal notice of the following
actions from being provided to Salem: the annexation of
land into Falls City; the rezoning of said land for commer-
cial use; the declaration of said land as blighted, which made
it eligible for tax increment financing; the approval of tax
increment financing and the issuance of at least one bond to
assist CGB; and the procurement of state and federal grants
to assist CGB. In doing so, Salem contended that the appel-
lees violated Nebraska’s Open Meetings Act3 (NOMA) and
the NCPA.
As a result of CGB’s entry into the market at the end of
2012, Salem alleged an annual loss net profit of 10 to 20 cents
per bushel for 2 million bushels per year of grain that it would
have or did handle in 2013 through 2015. During that same
period, Salem alleged an annual minimum loss of $150,000 in
storage revenue.
3
Neb. Rev. Stat. §§ 84-1407 to 84-1414 (Reissue 2008 & Supp. 2011).
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SALEM GRAIN CO. v. CONSOLIDATED GRAIN & BARGE CO.
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CGB; Cromer, Joy, Keller, and Radatz; and Jorn, Malone,
and Sickel separately moved to dismiss Salem’s complaint,
arguing that it had failed to state a claim upon which relief
could be granted, under Neb. Ct. R. Pldg. § 6-1112(b)(6).
CGB, Jorn, Malone, and Sickel also asserted that the appel-
lees were entitled to immunity under the Noerr-Pennington
doctrine.
The court ruled that Salem could not state any claim against
the appellees pursuant to the NCPA, because the appellees
were entitled to immunity, under the Noerr-Pennington doc-
trine, and rejected Salem’s claim that an exception to the
doctrine applied, because the appellees acted unlawfully by
violating the NOMA. The court also ruled that the conspiracy
and aiding and abetting claims required an underlying tort to
be viable. Therefore, the court dismissed the complaint with
prejudice, essentially finding any amendment would be futile.
Salem appealed.
III. ASSIGNMENTS OF ERROR
Salem assigns, restated and reordered, that the court erred
(1) in finding the appellees immune from suit, under the
Noerr-Pennington doctrine or otherwise; (2) in finding that
conspiracy and aiding and abetting claims are not indepen-
dent claims upon which relief can be granted but, instead,
require the allegation of an independent tort; (3) by sustain-
ing appellees’ § 6-1112(b)(6) motions to dismiss; (4) by
denying leave to amend; and (5) by not sustaining Salem’s
jury demand.
IV. STANDARD OF REVIEW
[1] A district court’s grant of a motion to dismiss on the
pleadings is reviewed de novo, accepting the allegations in
the complaint as true and drawing all reasonable inferences in
favor of the nonmoving party.4
4
Zapata v. McHugh, 296 Neb. 216, 893 N.W.2d 720 (2017).
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SALEM GRAIN CO. v. CONSOLIDATED GRAIN & BARGE CO.
Cite as 297 Neb. 682
[2] Statutory interpretation presents a question of law, for
which an appellate court has an obligation to reach an inde-
pendent conclusion irrespective of the decision made by the
court below.5
V. ANALYSIS
Salem argues, summarized, that it and other grain ware-
houses in and around southeast Nebraska were injured by
CGB’s entry into the market in Richardson County, because
CGB received special economic privileges. It claims that
the special privileges provided to CGB were the result of
the appellees’ conspiracy to prevent the public, and Salem
specifically, from having knowledge of the economic devel-
opment activities that the city council of Falls City was
providing. It further claims that the appellees participated
in violations of the NOMA in order to obtain those special
privileges.
As a result, it asserts that the conspiracy to provide CGB an
unfair advantage in the marketplace by violating the NOMA
was a violation of the NCPA under §§ 59-1602 and 59-1603,
which damaged Salem and created a cause of action under
§ 59-1609. Further, it contends that the appellees’ conspiracy
to engage in wrongful conduct—by violating the NOMA,
violating the NCPA, and withholding information—is suf-
ficient to sustain claims of conspiracy and aiding and abet-
ting. CGB argues that Salem’s single factual allegation—
that it expressed an interest in opening a grain warehouse
in the Falls City area—cannot support any claims against
it. Further, the appellees contend that, acting in their indi-
vidual capacities, their actions were nothing more than peti-
tioning the government to offer CGB incentives to open a
location in Falls City to advance economic development in
the community.
5
Hargesheimer v. Gale, 294 Neb. 123, 881 N.W.2d 589 (2016).
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SALEM GRAIN CO. v. CONSOLIDATED GRAIN & BARGE CO.
Cite as 297 Neb. 682
1. A ppellees A re Entitled to Immunity
From Salem’s NCPA Claims Under
Noerr-Pennington Doctrine
(a) Parties’ Contentions
Salem argues that the Noerr-Pennington doctrine is a nar-
row defense that applies only to antitrust claims and not to its
claims under the NCPA. It argues that §§ 59-1602 and 59-1603
of the NCPA were modeled after the Federal Trade Commission
Act6 (FTCA), not the Sherman Act7; that the FTCA focuses on
consumer rather than market protection; and that the FTCA is,
therefore, broader than merely antitrust claims.
Further, it contends that if we do find that the Noerr-
Pennington doctrine applies to its claims, we should adopt a
“conspiracy” exception to the doctrine in which politicians
or political entities are involved as conspirators with private
actors. While the U.S. Supreme Court has specifically rejected
such an exception to the Noerr-Pennington doctrine, Salem
contends that the Supreme Court limited its holding to the
Sherman Act. Accordingly, assuming that the doctrine applies
outside the context of antitrust claims, Salem contends that
the doctrine remains subject to the “conspiracy” exception for
unlawful conduct in petitioning the government.
Appellees argue that the Noerr-Pennington doctrine entitles
them to immunity from Salem’s claims under two theories.
First, to the extent that the Noerr-Pennington doctrine is
limited to the Sherman Act, and extended to the FTCA,
private citizens petitioning their government for favorable
business conditions are entitled to immunity, because federal
antitrust laws were tailored to regulate business, not politi-
cal arenas. Further, they assert that the NCPA is statutorily
required to be construed in accordance with similar federal
antitrust laws. Second, the First Amendment right to petition
6
See 15 U.S.C. §§ 41 to 58 (2012).
7
See 15 U.S.C. §§ 1 to 7 (2012).
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the government, which the Noerr-Pennington doctrine is also
based on, is not limited to the antitrust context.
Appellees also contend that there are no applicable excep-
tions to the Noerr-Pennington doctrine regarding Salem’s
claims. First, Jorn, Malone, and Sickel contend that the U.S.
Supreme Court has rejected any “conspiracy” exception to
antitrust claims. Second, all appellees argue that the “sham”
exception does not apply.
Alternatively, some of the appellees argue that they are
entitled to immunity under Nebraska’s Political Subdivisions
Tort Claims Act and the Parker doctrine.8
(b) Principles of
Noerr-Pennington Doctrine
We recently considered the Noerr-Pennington doctrine in
ACI Worldwide Corp. v. Baldwin Hackett & Meeks.9 In that
case, we determined that the plaintiff was not entitled to
immunity from the defendant’s counterclaims, regarding dam-
ages from the plaintiff’s tortious interference claims and anti-
trust activities, because the Noerr-Pennington doctrine is an
affirmative defense that the plaintiff had waived by failing to
timely assert it. Our decision in ACI Worldwide Corp. required
this court to examine the development of the Noerr-Pennington
doctrine in its application to private individual’s interactions
with the judicial branch only.
However, the Noerr-Pennington doctrine’s application to
judicial proceedings came significantly later than its creation
in the context of petitioning the legislative and executive
­branches.10 Accordingly, we briefly examine the principles
8
See Parker v. Brown, 317 U.S. 341, 63 S. Ct. 307, 87 L. Ed. 2d 315
(1943).
9
ACI Worldwide Corp. v. Baldwin Hackett & Meeks, 296 Neb. 818, 896
N.W.2d 156 (2017).
10
See California Transport v. Trucking Unlimited, 404 U.S. 508, 92 S. Ct.
609, 30 L. Ed. 2d 642 (1972).
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r­elevant to the Noerr-Pennington doctrine’s application to pri-
vate citizens’ actions of petitioning the government.
As we recognized in ACI Worldwide Corp., the Noerr-
Pennington doctrine developed as a result of two decisions by
the U.S. Supreme Court: Eastern R. Conf. v. Noerr Motors,11
and Mine Workers v. Pennington.12 In Noerr Motors, a col-
lective of truckers sued several railroad companies, alleg-
ing that the railroads had violated the Sherman Act through
an advertising campaign which was designed to destroy the
trucking industry by influencing legislators and governors to
only enact laws harmful to the trucking industry and damage
its public image. The Supreme Court held that the Sherman
Act did not apply to a private citizen’s conduct undertaken
to influence government action, because the Sherman Act’s
intended purpose was to regulate business, not political activi-
ties.13 This was true even if the conduct by which citizens
attempted to influence governmental regulation was under-
taken for the sole purpose of destroying competition, involved
unethical business practices, or was specifically intended to
hurt competitors.14
In Pennington, a coal company claimed antitrust viola-
tions against the trustees of a coal miners’ union, alleging
that it, along with large coal companies, had lobbied the
Secretary of Labor to establish a minimum wage in a contract
market that would drive small coal companies out of busi-
ness. In both Noerr Motors and Pennington, the Supreme
Court found the defendants immune from liability under the
Sherman Act.
The Supreme Court explained in Pennington that “Noerr
shields from the Sherman Act a concerted effort to influence
public officials regardless of intent or purpose” and expanded
11
Noerr Motors, supra note 2.
12
Pennington, supra note 2.
13
Noerr Motors, supra note 2.
14
Id.
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the application of Noerr Motors to lobbying efforts directed
at executive agencies.15
Since Noerr Motors and Pennington, the Supreme Court has
extended the doctrine to petitions before administrative agen-
cies and courts.16 Additionally, it has granted Noerr-Pennington
immunity “to a wide range of activities in addition to tradi-
tional lobbying, including . . . sales and marketing efforts[] and
court litigation.”17
[3] In Columbia v. Omni Outdoor Advertising, Inc.,18 the
Supreme Court further refined Noerr Motors and Pennington
to stand for the proposition that “[t]he federal antitrust laws
. . . do not regulate the conduct of private individuals in seek-
ing anticompetitive action from the government.” In that case,
the Supreme Court applied these principals to lobbying efforts
directed at a municipal government.19
[4] The U.S. Supreme Court predicated its holding in Noerr
Motors on the First Amendment’s petition clause and its statu-
tory interpretation of the Sherman Act.20 It reasoned:
In a representative democracy such as this, [the
Legislative and Executive] branches of government act
on behalf of the people and, to a very large extent, the
whole concept of representation depends upon the abil-
ity of the people to make their wishes known to their
representatives. To hold that the government retains the
15
Pennington, supra note 2, 381 U.S. at 670.
16
See California Transport, supra note 10. See, also, Davric Maine Corp. v.
Rancourt, 216 F.3d 143 (1st Cir. 2000).
17
Doron Precision Systems, Inc. v. FAAC, Inc., 423 F. Supp. 2d 173, 189
(S.D.N.Y. 2006). See, also, Columbia v. Omni Outdoor Advertising, Inc.,
499 U.S. 365, 111 S. Ct. 1344, 113 L. Ed. 2d 382 (1991).
18
Omni Outdoor Advertising, Inc., supra note 17, 499 U.S. at 379-80.
19
Id.
20
See Cardtoons v. Major League Baseball Players Ass’n, 208 F.3d 885
(2000), citing Noerr Motors, supra note 2. See, also, Omni Outdoor
Advertising, Inc., supra note 17.
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power to act in this representative capacity and yet hold,
at the same time, that the people cannot freely inform
the government of their wishes would impute to the
Sherman Act a purpose to regulate, not business activ-
ity, but political activity, a purpose which would have
no basis whatever in the legislative history of that Act.
[Additionally], and of at least equal significance, such a
construction of the Sherman Act would raise important
constitutional questions. The right of petition is one of
the freedoms protected by the Bill of Rights, and we
cannot, of course, lightly impute to Congress an intent to
invade these freedoms.21
The Supreme Court later reconciled these two principles by
explaining that its interpretation of the Sherman Act was “in
the light of the First Amendment’s Petition Clause.”22
While the U.S. Supreme Court has only explicitly applied
immunity under the Noerr-Pennington doctrine in the antitrust
context, many states have adopted and applied the Noerr-
Pennington doctrine to state antitrust claims,23 as well as other
21
Noerr Motors, supra note 2, 365 U.S. at 137-38.
22
FTC v. Superior Court Trial Lawyers Assn., 493 U.S. 411, 424, 110 S. Ct.
768, 107 L. Ed. 2d 851 (1990).
23
See, Blank v. Kirwan, 39 Cal. 3d 311, 703 P.2d 58, 216 Cal. Rptr. 718
(1985); Harrah’s Vicksburg Corp. v. Pennebaker, 812 So. 2d 163 (Miss.
2001) (state antitrust and tort claims alleging restraint of trade, civil
conspiracy, and tortious interference); Defino v. Civic Center Corp., 780
S.W.2d 665 (Mo. App. 1989) (state antitrust and tort claims); Green
Mountain Realty v. Fifth Estate Tower, 161 N.H. 78, 13 A.3d 123 (2010)
(claim asserted under New Hampshire’s Consumer Protection Act); Good
Hope Hosp. v. Dept. of Health, 174 N.C. App. 266, 620 S.E.2d 873 (2005)
(state antitrust and tort claims); Black Hills Jewelry Mfg. Co. v. Felco
Jewel Ind., 336 N.W.2d 153 (S.D. 1983); Anderson Development Co. v.
Tobias, 116 P.3d 323 (Utah 2005) (state antitrust and tort claims). See,
also, Astoria Entertainment, Inc. v. DeBartolo, 12 So. 3d 956 (La. 2009)
(generally applicable to state claims); Kellar v. VonHoltum, 568 N.W.2d
186 (Minn. App. 1997) (suggesting Noerr-Pennington might apply, under
Minnesota law, beyond antitrust context); Amer. Med. Transp. v. Curtis-
Universal, 154 Wis. 2d 135, 452 N.W.2d 575 (1990).
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claims.24 Many courts have reasoned that the Noerr-Pennington
doctrine’s reliance on the First Amendment’s petition clause
provides justification to extend such immunity to other claims,
because “there is no reason that the constitutional protection of
the right to petition should be less compelling in the context
of claims that arise outside of the scope of antitrust laws.”25 In
fact, in ACI Worldwide Corp., we recognized the extension of
the Noerr-Pennington doctrine to nonantitrust claims.26
Further, the Noerr-Pennington doctrine applies in state
court and to state-law claims because it is grounded on First
Amendment rights to petition the government.27 The First
Amendment to the U.S. Constitution guarantees “the right
24
See, Ex Parte Simpson, 36 So. 3d 15 (Ala. 2009) (state tort causes of
action); Gunderson v. University of Alaska, Fairbanks, 902 P.2d 323
(Alaska 1995) (state contract claim); Zeller v. Consolini, 59 Conn. App.
545, 758 A.2d 376 (2000) (state tort claim for tortious interference with
business relationship); Sandholm v. Kuecker, 405 Ill. App. 3d 835, 942
N.E.2d 544, 347 Ill. Dec. 341 (2010) (state claims), reversed on other
grounds 2012 IL 111443, 962 N.E.2d 418, 356 Ill. Dec. 733 (2012); Bond
v. Cedar Rapids Television Co., 518 N.W.2d 352 (Iowa 1994) (state tort
claim); Grand Communities, Ltd. v. Stepner, 170 S.W.3d 411 (Ky. App.
2004) (state tort claims stemming from zoning decisions); Arim v. General
Motors Corp., 206 Mich. App. 178, 520 N.W.2d 695 (1994) (state tort
claims); Structure Bldg. Corp. v. Abella, 377 N.J. Super. 467, 873 A.2d
601 (2005) (state tort claims); Arts4All Ltd. v. Hancock, 25 A.D.3d 453,
810 N.Y.S.2d 15 (2006) (state tort claim); Alves v. Hometown Newspapers,
Inc., 857 A.2d 743 (R.I. 2004) (common-law tort claims); RRR Farms,
Ltd. v. American Horse Protection, 957 S.W.2d 121 (Tex. App. 1997)
(state tort claims); Titan America, LLC v. Riverton Inv. Corp., 264 Va.
292, 569 S.E.2d 57 (2002) (state claims for conspiracy and business torts);
Perrine v. E.I. du Pont de Nemours and Co., 225 W. Va. 482, 694 S.E.2d
815 (2010) (noting Noerr-Pennington generally applied to state claims,
but holding that doctrine did not apply in particular circumstances of
this case).
25
Astoria Entertainment, Inc., supra note 23, 12 So. 3d at 964. See, e.g.,
Hufsmith v. Weaver, 817 F.2d 455 (8th Cir. 1987); We, Inc. v. City of
Philadelphia, 174 F.3d 322 (3d Cir. 1999); Kellar, supra note 23.
26
ACI Worldwide Corp., supra note 9.
27
Harrah’s Vicksburg Corp., supra note 23.
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of the people . . . to petition the Government for a redress
of grievances.”
[5] Nevertheless, in the context of antitrust laws, Omni
Outdoor Advertising, Inc. reiterated that the U.S. Supreme
Court’s ultimate conclusion in Noerr Motors was based on
the fact that “antitrust laws, ‘tailored as they are for the busi-
ness world, are not at all appropriate for application in the
political arena.’”28 Under this reasoning, federal and state
courts have applied the Noerr-Pennington doctrine to FTCA
cases,29 state unfair trade practices acts,30 and a state con-
sumer protection act.31 The extension of the doctrine to state
laws in this context is based on state statutory requirements
to construe state antitrust laws in accordance with their fed-
eral counterparts.32
In Rodgers v. F.T.C.,33 the petitioner contended that oppo-
nents of an “initiative measure had combined ‘in both vertical
and horizontal agreements, to make price representations to
the public that constituted unfair and deceptive trade prac-
tices’” under § 5 of the FTCA, codified at 15 U.S.C. § 45,
as well as the Sherman Act. The Federal Trade Commission
applied the Noerr-Pennington doctrine to the claims with
the similar reasoning that “‘[t]he proscriptions of Section 5
of the FTC[A], as we view them, like the proscriptions of
the Sherman Act, are tailored for the business world, not for
28
Omni Outdoor Advertising, Inc., supra note 17, 499 U.S. at 380, citing
Noerr Motors, supra note 2.
29
See, Rodgers v. F.T.C., 492 F.2d 228 (9th Cir. 1974); Union Oil Company
of California, 138 F.T.C. 1 (2004).
30
See, e.g., Bayou Fleet, Inc. v. Alexander, 234 F.3d 852 (5th Cir. 2000);
People ex rel. Gallegos v. Pacific Lumber, 158 Cal. App. 4th 950, 70 Cal.
Rptr. 3d 501 (2008). See, also, Green Mountain Realty, supra note 23.
31
See, Suburban Restoration Co., Inc. v. ACMAT Corp., 700 F.2d 98 (2d Cir.
1983); Green Mountain Realty, supra note 23.
32
See Green Mountain Realty, supra note 23.
33
Rodgers, supra note 29, 492 F.2d at 229.
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the political arena.’”34 The Ninth Circuit Court of Appeals
affirmed the Federal Trade Commission’s decision, because
all parties interested in the outcome of an initiative measure
had an “equal right to submit their arguments to the electorate
at large.”35
In Green Mountain Realty v. Fifth Estate,36 the New
Hampshire Supreme Court considered whether the Noerr-
Pennington doctrine applied to claims brought under its con-
sumer protection act. The court noted that New Hampshire’s
Consumer Protection Act was analogous to and statutorily
required to be construed consistently with § 5(a)(1) of the
FTCA, as amended, which states, “Unfair methods of compe-
tition in or affecting commerce, and unfair or deceptive acts
or practices in or affecting commerce, are hereby declared
unlawful.”37
Just as the Rodgers court and the Federal Trade Commission
held that the Noerr-Pennington doctrine applied to claims
brought under the FTCA, the court in Green Mountain Realty
held that the Noerr-Pennington doctrine applied to claims
brought under New Hampshire’s Consumer Protection Act.
The court ruled that even conduct which is deemed to be an
unfair or deceptive practice within the act would be immune
if it occurred in a political setting. “‘Fraudulent or deceptive
conduct can be actionable under the [Consumer Protection
Act] only if it occurs in a business setting involving the adver-
tising or sale of a commodity or service as part of the day-to-
day business of the defendant.’”38 The court too recognized
that “the proscriptions of the [FTCA], ‘like the proscriptions
34
Id. at 230.
35
Id. at 231.
36
Green Mountain Realty, supra note 23.
37
See id. See, also, 15 U.S.C. § 45.
38
Green Mountain Realty, supra note 23, 161 N.H. at 87, 13 A.3d at 131,
quoting Brzica v. Trustees of Dartmouth College, 147 N.H. 443, 791 A.2d
990 (2002).
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of the Sherman Act, are tailored for the business world, not for
the political arena.’”39
[6] However, the Noerr-Pennington doctrine is not without
its limitations. In Omni Outdoor Advertising, Inc., the U.S.
Supreme Court held that there was a “‘sham’ exception” to
private individuals’ petitioning for anticompetitive action from
their government.40 The “sham” exception involves attempts
to influence public officials for the sole purpose of expense or
delay.41 Conversely, the Court has rejected any application of
a “‘conspiracy’ exception” to the Noerr-Pennington doctrine
specifically in the context of antitrust laws.42
In Omni Outdoor Advertising, Inc., the defendant had argued
for both a broad construction of the conspiracy exception,
which applies whenever a public official and private citizen
conspired to restrain trade, and a narrow construction, which
applies only when the conspiracy is to accomplish action not
in the public interest or by corrupt means.43 The Court rejected
both constructions of the exception to the Noerr-Pennington
doctrine:
“It would be unlikely that any effort to influence legisla-
tive action could succeed unless one or more members
of the legislative body became . . . ‘co-conspirators’” in
some sense with the private party urging such action. .
. . And if the invalidating “conspiracy” is limited to one
that involves some element of unlawfulness (beyond
mere anticompetitive motivation), the invalidation
would have nothing to do with the policies of the anti-
trust laws.44
39
Id. at 86-87, 13 A.3d at 129, quoting Rodgers, supra note 29.
40
Omni Outdoor Advertising, Inc., supra note 17, 499 U.S. at 380. Accord
ACI Worldwide Corp., supra note 9.
41
Id.
42
Id., 499 U.S. at 382.
43
Omni Outdoor Advertising, Inc., supra note 17.
44
Id., 499 U.S. at 383 (emphasis in original) (citation omitted).
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[7] Since Omni Outdoor Advertising, Inc., courts have con-
tinued to reject a conspiracy exception to the Noerr-Pennington
doctrine in the context of antitrust claims.45 However, courts
have applied the conspiracy exception to the doctrine when
claims are based solely on the First Amendment’s petition
clause, not antitrust laws, because the First Amendment does
not entitle individuals to absolute immunity for their speech.46
As such, the line to determine when the conspiracy exception
applies is based not on whether the claim is antitrust in nature,
but on which theory the application of the Noerr-Pennington
doctrine is predicated on, either the First Amendment or the
antitrust laws.
(c) Salem’s Claims Under NCPA
Salem alleges violations of §§ 59-1602 and 59-1603. Before
examining these statutes, however, we note Neb. Rev. Stat.
§ 59-829 (Reissue 2010) provides that when “any provision
of Chapter 59 is the same as or similar to the language of a
federal antitrust law, the courts of this state in construing such
sections or chapter shall follow the construction given to the
federal law by the federal courts.”
[8] Section 59-1602 states that “[u]nfair methods of com-
petition and unfair or deceptive acts or practices in the con-
duct of any trade or commerce shall be unlawful.” We have
stated that § 59-1602 mirrors the language of 15 U.S.C.
§ 45(a)(1).47
[9] Section 59-1603 provides that “[a]ny contract, combina-
tion, in the form of trust or otherwise, or conspiracy in restraint
of trade or commerce shall be unlawful.” In State ex rel.
45
See, e.g., Coll v. First American Title Ins. Co., 642 F.3d 876 (10th Cir.
2011).
46
See, e.g., Cardtoons, supra note 20; Astoria Entertainment, Inc., supra
note 23; Westborough Mall v. City of Cape Girardeau, MO., 693 F.2d 733
(8th Cir. 1982).
47
Moats v. Republican Party of Neb., 281 Neb. 411, 796 N.W.2d 584 (2011).
See 15 U.S.C. § 45(a)(1).
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Douglas v. Associated Grocers,48 we construed § 59-1603 in
accordance with the U.S. Supreme Court’s interpretation of 15
U.S.C. § 1, and we stated that the NCPA is “the state version
of the Sherman Antitrust Act.”
[10,11] The NCPA is Nebraska’s version of the Sherman
Act, but it also encompasses portions of other federal anti-
trust laws, including the FTCA from which § 59-1602 is
modeled. Further, the act was intended to be an antitrust
measure to protect Nebraska consumers from monopolies and
price-fixing conspiracies.49 Accordingly, just as previous courts
have asserted that the proscriptions of the FTCA and the
Sherman Act are tailored for the business world, not for the
political arena, we find that proscriptions of the NCPA are
tailored for the business world, not for the political arena. As
a result, we hold that Salem’s claim that appellees violated the
NCPA is barred under the immunities extended by the Noerr-
Pennington doctrine.
While Salem’s allegations are of unlawful conduct in the
political arena, its claimed harm is antitrust in nature under
the NCPA. Accordingly, its theory of recovery is predicated
not on the First Amendment but on the interpretation of anti-
trust laws. Therefore, based on Omni Outdoor Advertising,
Inc., there is not a viable exception for a conspiracy between
the appellees and public officials, irrespective of any alleged
corrupt or unlawful means which may have resulted in harm
to Salem. As a result, the conspiracy exception to the Noerr-
Pennington doctrine is not applicable to the appellees.
(d) Appellees Sufficiently Raised
Noerr-Pennington Doctrine
[12-14] As we stated above, we recently recognized
that “the Noerr-Pennington defense is an affirmative
48
State ex rel. Douglas v. Associated Grocers, 214 Neb. 79, 83, 332 N.W.2d
690, 693 (1983).
49
Arthur v. Microsoft Corp., 267 Neb. 586, 676 N.W.2d 29 (2004).
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defense.”50 An affirmative defense may be asserted in a
motion filed pursuant to § 6-1112(b)(6) when the defense
appears on the face of the complaint.51 CGB, Jorn, Malone,
and Sickel explicitly raised the doctrine in their motion to
dismiss. Cromer, Joy, Keller, and Radatz, however, did not
raise the defense. Nevertheless, the court applied immunity
under the doctrine to all appellees. Salem did not assign
error to the court’s application of the Noerr-Pennington doc-
trine to Cromer, Joy, Keller, and Radatz. In the absence of
plain error, an appellate court considers only claimed errors
which are both assigned and discussed.52 We find no plain
error here.
[15] The Nebraska Rules of Pleading in Civil Actions,
like the federal rules, have a liberal pleading requirement for
both causes of action and affirmative defenses, but the touch-
stone is whether fair notice was provided.53 Because Salem
received fair notice that the Noerr-Pennington defense was
being raised by CGB, Jorn, Malone, and Sickel, which were
similarly situated to Cromer, Joy, Keller, and Radatz, Salem
was not prejudiced by the latter’s failure to assert the defense.
Accordingly, the Noerr-Pennington doctrine was sufficiently
raised regarding all appellees.
[16] Because we find that the appellees are immune from
Salem’s NCPA claims under the Noerr-Pennington doctrine,
we need not address their remaining assertions of immunity
from the NCPA claims. An appellate court is not obligated to
engage in an analysis that is not necessary to adjudicate the
case and controversy before it.54
50
ACI Worldwide Corp., supra note 9, 296 Neb. at 863, 896 N.W.2d at 188.
51
deNourie & Yost Homes v. Frost, 295 Neb. 912, 893 N.W.2d 669 (2017).
52
In re Trust of Rosenberg, 273 Neb. 59, 727 N.W.2d 430 (2007).
53
Funk v. Lincoln-Lancaster Cty. Crime Stoppers, 294 Neb. 715, 885
N.W.2d 1 (2016).
54
Estermann v. Bose, 296 Neb. 228, 892 N.W.2d 857 (2017).
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2. Claims of A iding and A betting and Civil
Conspiracy R equire Underlying
Tort to Be Actionable
Salem argues that the court erred in ruling that its claims of
civil conspiracy and aiding and abetting required an underly-
ing tort to be actionable. It argues that under our prior case
law, only an underlying wrongful conduct was required, and
that that statement of the law was inadvertently changed.
Accordingly, Salem asserts that a party is liable for the damages
resulting from any wrongful or tortious act that they encourage
or assist in the performance of, even if that party itself did not
commit any underlying wrongful acts. Essentially, it contends
that the appellees are each liable for the city council’s and
their own alleged violations of the NCPA and the NOMA, and
for otherwise withholding information from the public.
[17] A civil conspiracy is a combination of two or more
persons to accomplish by concerted action an unlawful or
oppressive object, or a lawful object by unlawful or oppres-
sive means.55 A claim of civil conspiracy requires the plaintiff
to establish that the defendants had an expressed or implied
agreement to commit an unlawful or oppressive act that con-
stitutes a tort against the plaintiff.56
[18,19] Similarly, a claim of aiding and abetting is that
“‘in addition to persons who actually participate in [concerted
wrongful action], persons who aid, abet, or procure the com-
mission thereof, are subject to a civil action therefor.’”57 Both
of these claims are essentially methods for imposing joint and
several liability on all actors who committed a tortious act or
any wrongful acts in furtherance thereof.58
55
United Gen. Title Ins. Co. v. Malone, 289 Neb. 1006, 858 N.W.2d 196
(2015).
56
deNourie & Yost Homes, supra note 51.
57
Bergman v. Anderson, 226 Neb. 333, 338, 411 N.W.2d 336, 340 (1987).
58
See, Koster v. P & P Enters., 248 Neb. 759, 539 N.W.2d 274 (1995);
Bergman, supra note 57. See, also, Malone, supra note 55.
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[20] Salem argues that our decision in Bergman v. Anderson,59
establishes that there does not need to be an underlying action-
able tort, or even wrong, to sustain an aiding and abetting
claim. Instead, it contends our holding in Bergman was that
acts of aiding, abetting, and procuring the commission of
wrongful conduct that causes damages are themselves the
actionable wrongful conduct, and, therefore, aiding and abet-
ting is an independent tort. We cannot agree with this inter-
pretation. Instead, we held in Bergman that the plaintiff had
“stated sufficient facts to support a theory that [the defend­
ant] acted in concert with others and aided and abetted in
the commission of an assault or battery [by] alleg[ing] that
those attacking [the plaintiff] were under [the defendant’s]
‘direction.’”60 Accordingly, the underlying conduct was the
actionable tort of assault and battery.
[21,22] Further, our precedent is clear regarding claims of
civil conspiracy: a “conspiracy” is not a separate and indepen-
dent tort in itself, but, rather, is dependent upon the existence
of an underlying tort.61 Without such underlying tort, there can
be no claim for relief for a conspiracy to commit the tort.62
We reject Salem’s assertion that a statutory violation alone
is sufficient to sustain a claim of civil conspiracy or aiding
and abetting.
Salem cites Eicher v. Mid America Fin. Invest. Corp.,63 to
argue that unlawful conduct under the NCPA, and by infer-
ence the NOMA, could support its claims. In Eicher, we
concluded that the appellants were guilty of civil conspiracy
because they had committed fraudulent misrepresentation
59
Bergman, supra note 57.
60
Id. at 339, 411 N.W.2d at 341.
61
Malone, supra note 55.
62
Id.
63
Eicher v. Mid America Fin. Invest. Corp., 275 Neb. 462, 748 N.W.2d 1
(2008).
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and violated the NCPA.64 Accordingly, the conspiracy to
commit the underlying tort, fraudulent misrepresentation,
­
made each defendant in that case jointly and severally liable
for all wrongful conduct committed in furtherance thereof,
including violations of the NCPA.65 Therefore, Salem’s reli-
ance upon Eicher is misplaced.
The only underlying conduct Salem asserts are violations of
the NCPA and the NOMA. As stated above, such statutory vio-
lations alone are not sufficient to support claims of civil con-
spiracy or aiding and abetting. Therefore, we find that Salem
failed to properly plead its claims of civil conspiracy or aiding
and abetting.
3. Salem Failed to State Claim
Upon Which R elief Could
Be Granted
Salem’s complaint alleges claims under the NCPA, aid-
ing and abetting and civil conspiracy. As we have found, the
appellees are entitled to immunity from Salem’s NCPA claims.
Further, Salem’s claims of aiding and abetting and civil con-
spiracy require an underlying tort to be actionable and no such
tort has been pled. Therefore, Salem has not stated claims
upon which relief can be granted as a matter of law.
4. Salem’s R emaining Assignments
of Error A re Without M erit
In its reply brief, Salem conceded that “[i]f dismissal is
appropriate and Arguments 1 - 3 are not successful, there is no
amending to be done in this case.”66 Accordingly, we do not
address its assignment of error to the contrary.
Additionally, because we find that Salem failed to state a
claim upon which relief could be granted and Salem conceded
64
Id.
65
Id.
66
Reply brief for appellant at 17.
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that leave to amend would be futile, we need not address
Salem’s assignment of error that the court failed to sustain its
jury demand.
VI. CONCLUSION
The Noerr-Pennington doctrine provides immunity to
appellees for petitioning the government to take action, even
if such resulting action violated the NCPA. Further, claims of
civil conspiracy and aiding and abetting require an underly-
ing tort, not merely an underlying statutory violation, to be
actionable. Salem failed to state a claim upon which relief
could be granted because appellees were entitled to immu-
nity under the Noerr-Pennington doctrine, and it alleged only
underlying statutory violations. Further, Salem conceded that
any amendment to its petition would be futile. Therefore,
we affirm the court’s order dismissing Salem’s complaint
with prejudice.
A ffirmed.