David Fischer (Antitrust Review) beat me to the punch announcing the FTC’s release of its staff report from the Bureau of Competition and Office of Policy & Planning on the Noerr-Pennington doctrine, which immunizes private actors urging government action from antitrust enforcement. The full text of the report is available here. This should prove to be an important document. Properly limiting the scope of Noerr-Pennington immunity is a critical task for antitrust enforcement because, unlike the transitory anticompetitive effects caused by the actions of private firms, potentially anticompetitive acts carried out through abuse of governmental process can be executed cheaply and the effects durable. In any event, the report will be mandatory reading for my antitrust course next semester. I’m still digesting the material in the report, and perhaps will share some more detailed reactions later, but in the meantime here are the FTC’s recommendations:
Part III contains staff recommendations regarding the doctrine, including recommending that the doctrine be clarified to provide that: 1) conduct protected by Noerr does not extend to filings, outside of the political arena, that seek no more than a ministerial government act; 2) conduct protected by Noerr does not extend to misrepresentations, outside of the political arena, that meet the standards set forth in the Commissionâ€™s Unocal decision; and 3) conduct protected by Noerr does not extend to patterns of repetitive petitioning, outside of the political arena, filed without regard to merit that employ government processes, rather than the outcome of those processes, to harm competitors in an attempt to suppress competition.
I did not beat you by much (although I now notice that I have to reset the blog’s clock due to daylight savings time). I too am still reading and digesting the report. Nonetheless, I will go out on a limb and predict that – although not mentioned by name in the report (or at least I have not seen it) – it will be cited by those parties who object brand name pharmaceutical companies filing multiple “citizen petitions” objecting to generic companies’ ANDA applications. See, for example, http://www.gphaonline.org/AM/Template.cfm?Section=Home&CONTENTID=1933&TEMPLATE=/CM/HTMLDisplay.cfm