Fisherman's Best v. Recreational Fishing

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
A FISHERMAN’S BEST, INCORPORATED; 
LOWCOUNTRY LOBSTERS, LIMITED;
AFB OF CHARLESTON, INCORPORATED;
F/V TRIPLE THREAT; F/V REBECCA
PAGE; F/V JOAN MARIE; F/V PROUD
MARY ELLEN,
Plaintiffs-Appellants,
v.
RECREATIONAL FISHING ALLIANCE,
Defendant-Appellee,
 No. 99-2186
v.
WILLIAM W. ALDRET; LOUIS E.
COSTA, II, MD; W. EDDIE GORDON;
JAMES F. HIGHTOWER; RUTLEDGE
LELAND; DAN LONG; TERRELL M.
RHYE; L. J. WALLACE; CHARLESTON
HARBOR PARTNERS, LLC; GULF
STREAM CAPITAL ASSOCIATES, LLC;
COEN COMPANY; RICHARD COEN,
Defendants.

Appeal from the United States District Court
for the District of South Carolina, at Charleston.
Falcon B. Hawkins, Senior District Judge.
(CA-97-2227-2-11)
Argued: April 5, 2000
Decided: October 31, 2002
Before MOTZ and KING, Circuit Judges, and
John C. GODBOLD, Senior Circuit Judge of the
United States Court of Appeals for the Eleventh Circuit,
sitting by designation.
2 A FISHERMAN’S BEST v. RECREATIONAL FISHING
Affirmed by published opinion. Senior Judge Godbold wrote the
opinion, in which Judge Motz and Judge King joined.
COUNSEL
ARGUED: William Atkins Scott, PEDERSEN & SCOTT, P.C.,
Charleston, South Carolina, for Appellants. Peter G. Nistad, HOOD
LAW FIRM, L.L.C., Charleston, South Carolina, for Appellee. ON
BRIEF: Robert H. Hood, HOOD LAW FIRM, L.L.C., Charleston,
South Carolina, for Appellee.
OPINION
GODBOLD, Senior Circuit Judge:
This is a companion case to City of Charleston, South Carolina, a
municipal corporation v. A Fisherman’s Best, Incorporated; AFB of
Charleston, Incorporated; Ivan Miller; and the fishing vessel Tri
Liner, No. 99-1991, pending in this court. The two cases are decided
concurrently.
This case arose from sharp differences in the City of Charleston,
South Carolina concerning commercial longline fishing and access to
the City’s new Maritime Center by vessels engaged in that method of
fishing.1 The City leased the Center to the Charleston County Park
and Recreational Commission (PRC) for it to manage. In April 1997
PRC circulated a request for proposals from entities that might wish
to operate the new Maritime Center, which had been built by the City
to serve commercial fishing vessels. PRC selected the AFB group
consisting of A Fisherman’s Best, Incorporated; AFB of Charleston,
1
A longliner uses a floating main line that may be several miles long,
suspended in the water by floats, to which short lines and baited hooks
are attached at intervals. It is highly regulated and federally permitted
and is the dominant form of commercial fishing used by United States
fishermen in the Atlantic Ocean to harvest highly migratory species such
as swordfish and shark.
A FISHERMAN’S BEST v. RECREATIONAL FISHING 3
Incorporated; and Low Country Lobsters, Limited. PRC issued a let-
ter of intent to award a contract to AFB. AFB proposed to serve ves-
sels engaged in longline fishing, along with other vessels. Longlining
is bitterly opposed by recreational and sportsfishermen and some
environmental groups. A public outcry arose against selection of
AFB.
Recreational Fishing Alliance (RFA) is a national non-profit orga-
nization whose stated purpose is rebuilding and preserving fisheries
in the United States. It seeks to politically organize saltwater anglers
and to safeguard their rights, protect jobs in the marine boat and
tackle industry, and ensure the long-term sustainability of our nation’s
saltwater fisheries. It is aligned in principle to sports and recreational
fishing and generally opposed to commercial fishing, and it seeks to
end longline fishing as an acceptable method of commercial fishing.
The CHP group is composed of persons who wanted their group
selected as operator of the Maritime Center, but their response to the
request for proposals was rejected as untimely. There is evidence that
they requested RFA to ask the mayor to accept their proposal. A mass
meeting of sportsfishermen opposing use of the center by longliners
took place in Charleston. RFA sent representatives to Charleston and
became involved in the public controversy for two or more months.
It wrote letters, contacted local officials and raised public conscious-
ness. At a public forum held by PRC the president of RFA denounced
longline fishing. PRC issued a letter of intent announcing that AFB
had been selected as operator for the Maritime Center. Apparently
there were discussions between the City and PRC, and arrangements
between PRC and AFB were cancelled. AFB asserts that a contract
had been made, but no document had been signed and the City says
no agreement had been reached.
PRC circulated a second request for proposals. AFB and CHP
responded and again AFB was selected. The public outcry resumed,
and RFA and others, including CHP, planned a rally against longline
fishing vessels and their potential use of the Center. Announcements
were made by mail, newspapers, and over radio, and persons were
urged to protest to the mayor against alleged use of City tax funds to
bring out-of-state fishing vessels to South Carolina waters. In late
July the mayor held a meeting in his office, and one or more represen-
4 A FISHERMAN’S BEST v. RECREATIONAL FISHING
tatives of RFA were included. The following day the mayor
announced that he had come to better understand the issues, that he
was changing his position, and that he would support recreational
fishermen in the controversy.
The AFB group, joined by longline fishermen and their vessels,
filed this suit in the United States District Court against RFA and
CHP. Plaintiffs alleged conspiracy between RFA and CHP, restraint
of trade, and interference with competition in violation of the Sher-
man Act, 15 U.S.C. § 1, and § 39-3-10 of the South Carolina Code of
Laws. They also alleged related state law claims of interference with
a contract or a prospective contract and for defamation.2
PRC’s second selection of AFB was terminated, and the City took
over operation of the Center. An operator was selected by the City,
and the Center was opened. Several months later the City adopted a
resolution barring from the Center longline vessels, longline tackle,
and swordfish. It then brought in South Carolina state court a suit
against the AFB group, seeking a judgment declaring that its resolu-
tion and the operation of the Center pursuant to the resolution were
constitutional and violated no federal or state law. The case was
removed to the District Court for the District of South Carolina, and
the court granted summary judgment to the City. That decision has
been appealed to this court, and contemporaneously with the decision
of the present case it is reversed for lack of federal jurisdiction. City
of Charleston, South Carolina, Mun. Corp., v. A Fisherman’s Best,
Inc.; AFB of Charleston, Inc., Ivan Miller and the fishing vessel Tri-
Liner, No. 99-1991.
In the instant case claims against all defendants other than RFA
were dismissed by plaintiffs. The district court granted summary
judgment to RFA on all claims. It held that RFA was exempt from
anti-trust liability under the Noerr-Pennington doctrine. See Eastern
R.R. President’s Conference v. Noerr Motor Freight, 365 U.S. 127(1961); United Mine Workers of Am. v. Pennington, 381 U.S. 6572
Plaintiffs brought another suit in state court against the CHP group
and the City alleging breach of contract and tort claims. When the pres-
ent case was decided in the United States District Court the state suit was
still pending, and we are not informed of its present status.
A FISHERMAN’S BEST v. RECREATIONAL FISHING 5
(1965). With regard to intentional interference with prospective con-
tractual relations the court, construing the facts favorably to plaintiffs,
found that, RFA’s purpose was to exercise First Amendment rights to
petition the City government not to allow longliners at the Center, and
that, if there was any interference with a contract, it was a by-product
of the exercise of the First Amendment, and, even if there was inten-
tional interference it was not done for an improper purpose. The con-
spiracy claim was rejected because there was no evidence that RFA
had an improper purpose.
The defamation claim was based upon a statement made in ads and
mail outs that the City was "bringing a big longline fishing fleet from
Florida," and alleged implications that new boats would be docking
at the Center, that the City was somehow subsidizing plaintiffs, and
that the plaintiffs were destroying resources. The court found that the
statements and implications were not defamatory. Moreover, it found
that, regardless of who had the burden of proving falsity or truthful-
ness, the indisputable facts showed the statements and implications to
be true.
I. ANTITRUST CLAIMS
AFB alleged a Sherman Antitrust Act violation for anticompetitive
acts violating § 15 U.S.C. § 1. To succeed AFB must establish that
there were two persons acting in concert and that the restraint com-
plained of constitutes an unreasonable restraint on interstate trade or
commerce. Estate Constr. Co. v. Miller & Smith Holding Co., Inc.,
14 F.3d 213, 220 (4th Cir. 1994). AFB alleged that RFA conspired
with the CHP defendants to engage in antitrust activity by opposing
AFB’s efforts to contract to operate the Maritime Center. As exam-
ples of RFA’s unreasonable anti-competitive actions AFB alleged dis-
tribution of flyers, placing ads in newspapers, and organizing and
sponsoring rallies. Plaintiffs do not contend that the City was a co-
conspirator.
The district court found that no party had addressed the question
of whether plaintiffs had established a violation of antitrust law.
Rather, for purposes of summary judgment, plaintiffs had assumed
that this issue was not disputed and that the question for decision was
whether RFA was exempt from antitrust liability. The court pro-
6 A FISHERMAN’S BEST v. RECREATIONAL FISHING
ceeded accordingly3 and held that RFA was exempt under the Noerr-
Pennington doctrine. That doctrine states that horizontal competitors
may join together to lobby government because antitrust violations
cannot be predicated on attempts to influence the passage or enforce-
ment of laws. The First Amendment shields such joint lobbying effort
from antitrust liability even when the competitors are seeking govern-
mental action that would eliminate competition or exclude competi-
tors. See Professional Real Estate Investors, Inc. v. Columbia
Pictures Indus., Inc., 508 U.S. 49, 56 (1993). The underpinning of
Noerr and its progeny is that Congress did not intend to subject to
antitrust liability actions that had the immediate purpose of influenc-
ing legitimate governmental decisionmaking processes. The doctrine
provides immunity to those who petition the government for redress.
Id. The court found that RFA was not a competitor of AFB in the
fishing industry and it found that RFA’s actions were simply attempts
to solicit governmental action to keep longline fishing vessels from
using the Maritime Center and to avoid additional fishing (by out of
state vessels) off the coast of Charleston. RFA’s actions, therefore,
were protected by Noerr.
The record reveals that initially the mayor of Charleston knew
nothing about longline fishing or about the controversy between
sportsfishermen and longliners, and he favored AFB to be the opera-
tor of the Maritime Center. In a statement on July 18, 1997 he
acknowledged that he had changed his mind. He explained that he had
learned of the effects of longlining on stocks of fish, of the interests
of sportsfishermen, and of the perception of citizens that governmen-
tal efforts at managing fisheries were not successful. He spoke of his
fears of possible harm to the City aquarium, which was close to the
docks, and to the City’s interests in tourism. He described community
opinion as opposed to longliners docking at the Center and told of
adverse community responses and of pressures upon him reflecting
that view. Thereafter the City cancelled its lease to PRC, took over
operation of the Center, and later adopted a resolution banning
pelagic longline vessels of any kind from docking, landing, unload-
ing, or processing their catch at the Maritime Center.
3
No party has objected to this approach.
A FISHERMAN’S BEST v. RECREATIONAL FISHING 7
The court found that RFA was opposed to longline fishing in gen-
eral and hoped to eliminate it, and was concerned with the possibility
of additional fishing by out-of-state vessels in the waters off Charles-
ton, which are a "nursery" for spawning swordfish. The court found
that no evidence supported plaintiffs argument that RFA sought to
have only AFB, not longliners in general, banned from the Maritime
Center and no evidence that RFA was engaged in a smear campaign
against AFB.
A director of RFA had written to the mayor suggesting that he sup-
port CHP’s proposal and thanking him for challenging the initial
selection of AFB. The court found this was not shown to be anything
other than part of RFA’s lobbying against longline fishing, and that
from a later letter it was clear that RFA supported CHP’s proposal
only because it did not include longline fishing vessels.
In this court the plaintiffs contend that Noerr does not apply at all
to this case because "[t]he case has nothing to do with fishing, but
everything to do with acquiring real estate, the maritime center." This
is a mischaracterization that the record does not support. They make
a related argument that Noerr does not apply because the City did not
act as a government in leasing the Center but as a commercial enter-
prise. The City responded to a public need related to a struggling
industry, and, using public funds, built a municipal facility. It found
itself involved in a public controversy in the community it served
concerning who would operate the facility. It addressed the problem.
This is not a commercial activity that had a political impact, but a
public-political firestorm in which competitive bidding was only inci-
dent. See Allied Tube & Conduit, Corp. v. Indian Head, Inc., 486 U.S.
492, 506 (1998).
The district court applied proper summary judgment standards.
Evidence should be viewed in the light most favorable to the non-
moving party, Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 123-
24 (4th Cir. 1990). The court must find that there is no genuine issue
as to any material fact. Fed.R.Civ.P. 56. If no material factual dis-
putes remain, summary judgment should be granted against a party
who fails to make a showing sufficient to establish the existence of
an element essential to that party’s case and on which the party bears
the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 3178 A FISHERMAN’S BEST v. RECREATIONAL FISHING
(1986). When the record taken as whole could not lead a rational trier
of fact to find for the non-moving party, disposition by summary
judgment is appropriate. Teamsters Joint Council No. 83 v. Centra,
Inc., 947 F.2d 115, 119 (4th Cir. 1991). Applying these principles, the
court held that the Noerr-Pennington doctrine clearly applied because
the actions of RFA were simply attempts to solicit government action
to keep longline vessels from using a facility built with taxpayer dol-
lars and to avoid additional fishing efforts off the coast (by out-of-
state vessels), and that RFA was petitioning the government for
redress and therefore was immune from antitrust liability.
II. ALLEGED EXCEPTIONS TO NOERR-PENNINGTON
Not every concerted effort to influence government action is
immune under Noerr-Pennington. The scope of this immunity
depends on the source, context, and nature of the anticompetitive
restraint at issue. See Allied Tube & Conduit Corp. v. Indian Head,
Inc., 486 U.S. 492, 499 (1988). Unethical and deceptive practices can
constitute abuses of administrative or judicial process that may result
in antitrust violations. Id. at 500.
AFB contends that, even if Noerr is generally applicable, RFA’s
lobbying campaign is not protected from antitrust liability because it
falls under one of the exceptions to Noerr: (1) the sham exception; (2)
that RFA acted in bad faith, misrepresented information, made
improper threats, and used other coercive means intended to corrupt
the political or administrative processes; and (3) that this case
involved a commercial bid proposal.
A. The Sham Exception
Noerr immunity does not apply to petitions or lawsuits that are a
"mere sham to cover what is actually nothing more than an attempt
to interfere directly with the business relationships of a competitor."
Eastern R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365
U.S. 127, 144 (1961) (defining the sham exception). Under the Noerr
doctrine filing a lawsuit or seeking other government action can vio-
late antitrust laws when it is a "sham." "A classic example [of a sham]
is the filing of frivolous objections to the license application of a com-
petitor, with no expectation of achieving denial of the license but sim-
A FISHERMAN’S BEST v. RECREATIONAL FISHING 9
ply in order to impose expense and delay." See City of Columbia v.
Omni Outdoor Adver., Inc., 499 U.S. 365, 380 (1991).
The essential element of the sham exception is intent to injure a
competitor coupled with the absence of a genuine effort to influence
the government. "[E]vidence of anticompetitive intent or purpose
alone cannot transform otherwise legitimate activity into a sham."
Professional Real Estate Investors v. Columbia Pictures Indus., Inc,
508 U.S. 49, 59 (1993). The existence of probable cause to institute
legal or administrative action precludes a finding that an antitrust
defendant has engaged in sham litigation. Id. at 62. The necessary
probable cause requires no more than a reasonable belief that there is
a chance that a claim may be held valid upon adjudication. Id.RFA’s lobbying effort was successful. A successful effort to influ-
ence governmental action "certainly cannot be characterized as a
sham." Professional Real Estate, 508 U.S. at 58 (citing Allied Tube
& Conduit Corp. v. Indian Head, Inc., 486 U.S. 492, 502 (1988)). See
also Eden Hannon & Co. v. Sumitomo Trust & Banking Co., 914 F.2d
556, 565 (4th Cir. 1990) (holding that a litigant who successfully per-
suades "a neutral judge or jury that it is entitled to legal relief from
the conduct of another based upon the law and facts" cannot be sued
under the sham exception to Noerr-Pennington).
A two-step test for sham exceptions was announced in Professional
Real Estate. The Supreme Court explained:
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 chal-
lenged litigation is objectively meritless may a court exam-
ine the litigant’s subjective motivation. Under the second
part of our definition of sham, the court should focus on
whether the baseless lawsuit conceals "an attempt to inter-
fere directly with the business relationships of a competi-
tor," Noerr, supra, 365 U.S. at 144, through the "use [of] the
governmental process — as opposed to the outcome of that
10 A FISHERMAN’S BEST v. RECREATIONAL FISHING
process — as an anticompetitive weapon." Omni, 499 U.S.
at 380. This two-tiered process requires the plaintiff to dis-
prove the challenged lawsuit’s legal viability before the
court will entertain evidence of the suit’s economic viability.
508 U.S. at 60-61 (brackets in original).
AFB’s analysis does not satisfy the first step of the Professional
Real Estate test. AFB did not present sufficient evidence to show that
RFA’s attempt to change the City’s longlining policy for the Maritime
Center was objectively baseless. RFA engaged in lobbying, using
media and political channels to sway public opinion against longlin-
ing because of the effect that it perceived longliners would have on
Atlantic fisheries. RFA could reasonably expect to succeed, and it did
so. Its lobbying campaign was a success. It successfully educated
local government officials concerning its views and helped to obtain
a favorable governmental policy barring longline fishing vessels from
mooring at a public facility.
Because AFB cannot overcome the first hurdle in the Professional
Real Estate test we need not address RFA’s subjective reasons for
participating in the campaign and we do not need to discuss the sec-
ond step — whether baseless action by the defendants concealed an
attempt to interfere directly with the business relationship of a com-
petitor through the use of governmental process as an anti-
competition weapon. Moreover, apart from our conclusion concerning
RFA’s subjective reasoning, the district court found that RFA was not
a competitor of the plaintiffs. That finding is not clearly erroneous.
B. Misrepresentation, bad faith, threats, and corruption
AFB contends that Noerr-Pennington immunity should not apply
because RFA organized and conducted a "smear" campaign against it,
misrepresented information, made threats, and engaged in corrupt
practices. There is no officially recognized Noerr immunity exception
for any of these activities, but we will nevertheless address them as
elements of the contention that RFA conducted an improper lobbying
effort.
A FISHERMAN’S BEST v. RECREATIONAL FISHING 11
Misrepresentation
AFB presented no evidence that RFA deliberately made false and
material representations in the course of its lobbying effort. See Hos-
pital Bldg. Co. v. Trustees of Rex Hosp., 691 F.2d 678, 687 (4th Cir.
1982) (stating that misrepresentations, to fall within the sham excep-
tion to Noerr immunity must be made with the requisite intent). See
also Whelan v. Abell, 48 F.3d 1247 (D.C. Cir. 1995) (finding that
even if litigation is not baseless the defendant is not entitled to Noerr
immunity if it deliberately made false and material representations).
AFB’s president testified generally that RFA presented false, half-
true, and disparaging statements concerning longline fishing. The dis-
trict court addressed four matters allegedly misrepresented by RFA:
(1) that the City was bringing a big longline fishing fleet from Flor-
ida, (2) that there would be new boats operating out of the Maritime
Center, (3) that the City was subsidizing longline fishing, and (4) that
AFB was destroying natural resources by allowing longliners to dock
at the Maritime Center. The same allegations were made in AFB’s
defamation claim.
There is no merit to AFB’s allegation regarding the effect of lon-
gliners on natural resources. Ample evidence indicates that longlining
may be destructive to marine resources. Thousands of pages of fed-
eral statutes, regulations, and proposed regulations have been created
in an attempt to balance the nation’s interest in protecting its fisheries
against harms caused by longlining and other commercial fishing
methods. Whether the harm is as great as RFA asserts, and whether
it is balanced by the interests of the longline industry and the public’s
interest in longline fishing as a food source, do not obviate the fact
that destruction of resources occurs. RFA cannot lose its Noerr pro-
tection for taking a position on this hotly debated topic.
RFA made no representation of fact that was not substantially true
or reported by news agencies independent of RFA prior to RFA’s
arrival in Charleston. Many of the facts alleged by AFB as false were
contained in a March 22, 1997 newspaper article written two months
before RFA’s arrival. This article stated that AFB hoped "to attract as
many as 30 swordfish boats, shrimp trawlers and other fishing ves-
sels" to the Maritime Center. The president of AFB testified that he
12 A FISHERMAN’S BEST v. RECREATIONAL FISHING
hoped to attract to Charleston vessels that historically had done busi-
ness with him at other locations.
Other statements allegedly misrepresented by RFA were made by
AFB or its representatives. In his deposition AFB owner Vince Pyle
stated that at least one longline vessel fishing in South Carolina
waters hailed out of Florida. At a mass meeting on May 5 Pyle
acknowledged the nomadic nature of longline vessels that work the
Atlantic from Florida to North Carolina. AFB’s own operational pro-
posals stated that it planned to dock a fleet of longliners at the Mari-
time Center. There were no misrepresentations.
Threats and Corruption
James Donofrio, the president of RFA, contacted Pyle, the presi-
dent of AFB, and told him that he would "call off the dogs" and cease
lobbying against longliners docking at the Maritime Center if Pyle
would agree not to bring longliners to the dock. According to Pyle,
Donofrio claimed to have the power and connections to keep AFB out
of the Maritime Center or to persuade those opposing it to withdraw
their opposition if it would dock longliner vessels at another site. Pyle
informed Donofrio that the AFB proposal was not financially feasible
if longliners were not included, and rejected Donofrio’s offer. CHP’s
name did not come up in this conversation. AFB sees this as a threat
and a corrupt attempt to make a deal on behalf of CHP. The district
court did not err in finding that this was only a conversation about set-
tlement negotiations.
RFA wrote a letter to the mayor, thanking him for challenging the
"done deal" with AFB [referring to the first selection of AFB] and
recommending the acceptance of CHP as operator. This was insuffi-
cient to establish a conspiratorial relationship. A lobbying group may
make recommendations through its lobbying campaign. We have pre-
viously described the mayor’s change of mind about longlining. He
publicly acknowledged that he had changed his mind and explained
why.
AFB presented no evidence of bribes or blackmail or of any other
corruption or impropriety engaged in by RFA to taint the governmen-
tal process in Charleston. In deposition testimony PRC commission-
A FISHERMAN’S BEST v. RECREATIONAL FISHING 13
ers Virgil Passailaigue and Tim Eubanks testified that nothing
inappropriate or corrupt occurred during RFA’s lobbying campaign.
There is no substantial evidence of corruption in the City’s own pro-
cesses or of corrupt actions by RFA.
Bad Faith
RFA is a lobbying entity. Rightly or wrongly, it perceives longline
fishing as depletion and mismanagement of resources by an industry
that it considers antagonistic to its goals, and it considers governmen-
tal management of fisheries as ineffective. It joined in the efforts of
others having a common purpose. It had a protected right to petition
the government, and plaintiffs have not shown a sufficient basis to
strip it of Noerr-Pennington immunity.
AFB charged that RFA acted in bad faith because it was directly
opposed to AFB rather than to longlining in general, therefore Noerr
protection is inapplicable. As we have held, inquiring into the subjec-
tive rationale of RFA’s lobbying campaign would be appropriate only
if the campaign was objectively baseless. RFA could reasonably
expect, and did achieve, a successful lobbying effort. See Professional
Real Estate, 508 U.S. 49.
C. Competitive Bidding Process Exception
Noerr immunity is not lost because competitive bids were
involved. Corrupt bidding can fall under the sham exception to Noerr
but only if corrupt.
AFB relies on three bidding cases. Allied Tube & Conduit Corp. v.
Indian Head, Inc., 486 U.S. 492, 509 (1988) (finding efforts to influ-
ence the setting of private standards that were routinely adopted by
state and local governments did not qualify for Noerr immunity when
the defendant’s activities were a sham intending only to control the
standards promulgated by a private trade association); F. Buddie Con-
tracting, Inc. v. Seawright, 595 F. Supp. 422 (N.D. Ohio 1984) (hold-
ing that Noerr immunity did not apply because of the defendant’s
improper relationship with a city consultant who disqualified the
plaintiff’s bid); George R. Whitten, Jr., Inc. v. Paddock Pool Builders,
14 A FISHERMAN’S BEST v. RECREATIONAL FISHING
Inc., 424 F.2d 25, 33 (1st Cir. 1988) (stating that statutes requiring
competitive bidding required the defendant to refrain from dealing
with officials who administer the bid statutes).
These cases do not create a discrete competitive bid exception to
Noerr. Competitive bidders are free to lobby the relevant government,
but they cannot do so by corrupting the bid process. The above cases
reaffirm that lobbying efforts involving competitive proposals can be
a sham if other evidence indicates that corrupt or questionable prac-
tices are initiated by a competitor directly involved with the bidding
process. RFA was not a competitor. Allegations that it received finan-
cial benefits from recreational fishing tournaments and receives fund-
ing through a boat company that caters to sport fishermen do not
overcome Noerr immunity.
III. STATE LAW CLAIMS
AFB’s state law claims allege interference with a contract and/or
a prospective contract, conspiracy and defamation. All arose out of
the same facts that give rise to the alleged antitrust violations. In
Cheminor Drugs, Ltd. v. Ethyl Corp., 168 F.3d 119 (3d Cir. 1999),
the Third Circuit held that the same First Amendment principles on
which Noerr-Pennington was based applied to New Jersey state tort
claims for malicious prosecution, unfair competition, and tortious
interference with prospective economic advantage, based on the same
activity of petitioning the government that barred the federal antitrust
claim. We need not adopt such a broad general rule in this case
because the district court did not err in dismissing each state law
claim for failure to satisfy summary judgment standards or some ele-
ment of the underlying state claim.
A. Interference with Contractual and Prospective Contractual
Relations and Conspiracy
AFB alleged that in violation of state law RFA conspired with the
CHP defendants and interfered with its contractual and prospective
contractual relations with PRC. The district court held that RFA’s
purpose was to petition the local government not to allow longliners
at the Maritime Center, that interference with AFB’s prospective con-
tract was only a by-product of RFA’s campaign against longline fish-
A FISHERMAN’S BEST v. RECREATIONAL FISHING 15
ing and that even if the interference was intentional, it was not for an
improper purpose.4
The elements of an intentional interference with prospective con-
tractual relations are: (1) intentional interference with a plaintiff’s
potential contractual relations, (2) for an improper purpose or by
improper methods, and (3) causing injury to the plaintiff. See Cran-
dall Corp. v. Navistar Transp. Corp., 395 S.E.2d 179 (S.C. 1990). If
a defendant acts for more than one purpose his improper purpose
must predominate in order to create liability. As an alternative to
establishing an improper purpose the plaintiff may prove the defen-
dant’s method of interference was improper under the circumstances.
Id. at 180. The improper purpose upon which AFB relies is its allega-
tion that RFA conspired with co-defendant CHP to deprive AFB of
a contract to operate the Center and to obtain for CHP the contract to
operate.
A civil conspiracy is the combination of two or more parties joined
for the purpose of injuring the plaintiff, thereby causing him special
damages. See LaMotte v. Punch Line of Columbia, Inc., 370 S.E.2d
711, 713 (S.C. 1988). To establish a concert of action a plaintiff must
produce direct or circumstantial evidence from which a party may
reasonably infer the joint assent of the minds of two or more parties
to the prosecution of the unlawful exercise. A conspiracy is actionable
only if overt acts pursuant to the common design proximately cause
damage to the plaintiff. See First Union Nat. Bank of S.C. v. Soden,
511 S.E.2d 372, 383 (S.C. Ct. App. 1998). Nevertheless, lawful acts
may become actionable if the object is to ruin or damage the business
of another. See Lamotte, 370 S.E.2d at 713.
As we have pointed out, CHP contacted RFA and requested assis-
tance in opposing longliners’ access to the Maritime Center. RFA
responded, came to Charleston and began a successful lobbying
effort. CHP assisted RFA in organizing and mobilizing citizens
against longlining. When it appeared that the opposition to longlining
4
The district court did not address the question of whether AFB and
PRC had entered into a contract but considered only interference with
AFB’s prospective contractual relations. No party suggests that this was
error.
16 A FISHERMAN’S BEST v. RECREATIONAL FISHING
was successful RFA sent a letter to the mayor thanking him for his
support and recommending CHP as operator.
RFA is a lobbying group organized for and engaged in lobbying
against commercial fishing methods that it opposes. A grassroots
effort opposing the mooring of longline vessels at the Maritime Cen-
ter was under way before RFA arrived in Charleston. The thrust of the
campaign was against longline fishing and not at any other elements
of AFB’s proposed operations at the Center. In his conversation with
Vince Pyle of AFB, President Donofrio of RFA proposed to "call the
dogs off" if AFB would move longline vessels to a separate facility.
He did not suggest that AFB give up its status as actual or proposed
sub-lessee or make any concession other than removal of longline
vessels.
The district court found that RFA’s purpose was to exercise its
First Amendment rights to petition the local government not to allow
longliners at the Maritime Center and if it were found that RFA inten-
tionally interfered with AFB’s corporate opportunity, plaintiffs did
not establish that it was for an improper purpose. We cannot say that
either of these findings was error. Moreover, if the defendant acts for
more than one purpose its improper purpose must predominate to
create liability. Crandall Corp. v. Navistar Int’l. Transp. Corp., 395
S.E.2d 179.
B. Defamation
The allegations that AFB says were false and defamatory are the
same allegations made in AFB’s antitrust claim, and they fail.
A communication is defamatory only if it is false and tends to
impeach the plaintiffs reputation. See Elder v. Gaffney Ledger, Inc.,
511 S.E.2d 383 (S.C. 1999), rev’d on other grounds, 533 S.E.2d 899(S.C. 2000). As we concluded in our antitrust analysis, the alleged
defamatory statements are substantially true. Truth of the matter or
substantial truth is a complete defense to a claim for defamation. See
WeSav Fin. Corp. v. Lingefelt, 450 S.E.2d 580, 582 (S.C. 1994).
Moreover, none of the allegedly false statements is inherently harmful
to AFB’s reputation.
A FISHERMAN’S BEST v. RECREATIONAL FISHING 17
The district court did not err in holding that RFA was not a com-
petitor of AFB, that the Noerr-Pennington doctrine applies, that RFA
is entitled to immunity, pursuant to it, and that none of the exceptions
to Noerr apply. The decision of the district court is
AFFIRMED.