by Malory Weigel*

The First Amendment protection to petition the government has led the Supreme Court to recognize certain actions by firms as immunized under antitrust laws. The Noerr-Pennington Doctrine protects from antitrust scrutiny a firm who petitions the government, via Congress, courts, or administrative agencies, to take action against its competitors. The Supreme Court has identified an important exception to this immunity: sham litigation. However, the Court has yet to define a clear test to evaluate allegations of a scheme of repetitious sham litigation by a firm against its competitors. While the majority of circuit courts faced with the question have adopted a dual-test system wherein one strict, defendant-friendly standard applies for evaluating allegations of singular sham litigation and a separate flexible, plaintiff-friendly standard applies for allegations of serial sham litigation, this Contribution argues that the same strict test should apply for both singular and serial sham litigation. Applying a universal, strict test to all allegations of sham litigation is consistent with prior actions of the Supreme Court and Congress, aligns with traditional antitrust jurisprudence, ensures the protection of fundamental freedoms, and presents fewer application obstacles.

The First Amendment guarantees individuals the right “to petition the Government for a redress of grievances.”1 As such, the Supreme Court has held that commercial competitors have a right to petition the government to take actions against their competitors, through litigation or lobbying, without running afoul of antitrust laws—a doctrine known as Noerr-Pennington immunity.2 However, this immunity is lost when a competitor engages in sham litigation.3 In such instances, a competitor’s efforts to interfere with the business of a competitor through bad faith, meritless litigation can lead to antitrust liability.4

The Supreme Court first recognized the sham litigation exception in Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc. (“Noerr”), stating that there may be situations wherein activities “ostensibly directed toward influencing government action [are] a mere sham” to cover up competitive interference, such that antitrust liability could attach.5 The Court later affirmed and elaborated on this exception in California Motor Transport Co. v. Trucking Unlimited when faced with an allegation of serial sham litigation. There, the Court found that when a plaintiff alleges that a firm “instituted the proceedings. . . with or without probable cause, and regardless of the merits of the case,” the conduct may fall within the sham exception to Noerr-Pennington immunity.6 Finally, in its most recent decision on the matter, Professional Real Estate Investors, Inc. v. Columbia Pictures Industries, Inc. (“PRE”), the Supreme Court established a strict, defendant-friendly, two-part test for sham litigation: A plaintiff must first show that the competitor’s lawsuit is objectively baseless, and only then should the court evaluate whether the lawsuit was subjectively motivated by an effort to interfere with a competitor’s business.7 The resulting PRE test is defendant- and petitioning-friendly because a plaintiff must first prove that a competitor had no reasonable basis for their petitioning activity. Without this requirement, a plaintiff could use evidence of an anticompetitive motive to strip the firm of its First Amendment rights, even if the activity was reasonable, meritorious, and beneficial to society. Thus, First Amendment rights to petition the government and sham litigation defendants are more vigorously protected by the PRE test.

Following the PRE decision, circuit courts split on the proper analysis to apply when a plaintiff alleges not merely a singular instance of sham litigation, but a pattern of litigation which altogether is so burdensome as to interfere with the plaintiff’s ability to conduct business. The majority of circuits who have addressed serial sham litigation (the Second, Third, Fourth, Ninth, and Tenth Circuits) have held that a separate test applies when a plaintiff alleges serial litigation, and thus a dual-test system has emerged in those circuits.8 Under this dual-test approach, courts need not follow the strict, two-part test of PRE when evaluating serial sham allegations, and instead apply a more flexible, plaintiff-friendly analysis—attributed to California Motor—which does not require a threshold finding of objective unreasonableness.9 This flexible inquiry allows courts to consider the defendant’s subjective intent before or alongside the objective merits of the case, recognizing that serial litigation “has far more serious implications than filing a single action.”10 As a result, the dual-test approach favors antitrust plaintiffs in serial litigation suits because all litigation, reasonable or unreasonable, can be a sham and can be considered as part of an alleged pattern. In other words, defendants will not be guaranteed immunity for filing winning lawsuits, for lobbying for valid government action, or for seeking enforcement action against a competitor for violations of laws or regulations, if those petitions were accompanied by a motive to impede its competitors. Defendants are exposed to the denial of First Amendment rights, and potential antitrust liability, for petitioning the government with objectively reasonable inquiries. In contrast, the First and Seventh Circuits have established a minority approach by appropriately holding that PRE’s strict, defendant-friendly test universally applies to all allegations of sham litigation, be it singular or serial.11 This is the proper approach as it adheres to Supreme Court and Congressional intent, preserves First Amendment protections, and is more easily and uniformly applied.

The text of the PRE decision illustrates the Supreme Court’s intent for the strict PRE test to apply to all cases of sham litigation. In PRE, the Supreme Court articulated an unequivocal requirement for all sham allegations when it stated, “[w]e hold that litigation cannot be deprived of immunity as a sham unless the litigation is objectively baseless.”12 Furthermore, it held that an “objectively reasonable effort to litigate cannot be sham regardless of subjective intent.”13 In so holding, the Court did not cabin its decision to cases alleging only single sham petitions. To the contrary, it used expansive and inclusive language such as “those who petition the government,” and “sham activities” throughout.14 The Court also stated its understanding that California Motor and all subsequent related cases had consistently assumed that the sham exception contained an “indispensable objective component.”15 Moreover, the PRE opinion contemplated examples of repetitious sham litigation and noted that evidence of such would carry “the hallmark of insubstantial claims.”16 The Court doubled down by stating that anticompetitive intent does not affect legality and that a subjective standard “would utterly fail to supply real intelligible guidance.”17 While the majority of circuits’ dual-test approach to serial sham litigation curiously focuses on this disclaimed subjective test, the minority approach correctly reads PRE as binding on serial sham allegations.

As the Court noted in PRE, a universal strict, two-part test is consistent with prior Supreme Court holdings.18 Starting with the genesis of the sham exception, Noerr stated that the sole motive to interfere with one’s competitor does not make conduct illegal.19 Noerr further stated that the right to petition “cannot properly be made to depend upon [the petitioner’s] intent in doing so,” evincing an aversion to a subjective test.20 Next, the Court in United Mine Workers v. Pennington affirmed these principles in stating that “nothing could be clearer from the Court’s opinion [in Noerr] than that anticompetitive purpose did not illegalize the conduct,” even if it was part of a broader scheme.21 In PRE, the Supreme Court characterized its California Motor decision as elaborating on Noerr, but leaving unresolved whether litigation is considered sham merely because the petitioner’s subjective motive was not an expectation of success on the merits of the petition filed but rather anticompetitive intent.22 The Court in PRE answered “no.”23 In fact, the PRE decision noted that a subjective test would “undermine, if not vitiate, Noerr.”24 Thus, universal application of the PRE test is consistent with prior Supreme Court decisions and represents the natural, negative answer to a previously open question: whether immunity can turn on subjective intent alone.

Applying a universal strict, PRE test to all allegations of sham litigation is also consistent with prior actions of Congress. First, as stated by the Supreme Court, Congress exercises great caution to avoid creating legislation that infringes on political activities, including First Amendment-protected activities.25 A broad application of antitrust laws would render Congress’ efforts at preserving freedoms useless, by punishing political activities Congress sought to protect.26 In fact, interpreting the Sherman Act, the premiere antitrust legislation, as regulating “not business activity, but political activity . . . would have no basis whatever in the legislative history of the Act.”27 There, the Court considered political activity to mean petitioning activities, or the ability of people to “freely inform the government of their wishes.”28 Courts should apply antitrust laws, like all laws, in ways that are not antithetical to Congress’ purpose,29 and in this realm doing so requires protecting petitioning rights by applying the strict, defendant-friendly PRE test. Moreover, such a perverse application of the Sherman Act would raise constitutional concerns under the First Amendment,30 invoking the constitutional avoidance canon of statutory interpretation, the rule that courts should interpret statutes in ways that do not raise constitutional concerns.31 Adopting the PRE test for all sham allegations would avoid the constitutional questions implicated by attaching antitrust liability to First Amendment activities, and would therefore best comply with the acts and intents of Congress.

Universal application of the strict PRE test better protects fundamental freedoms than the dual-test system. The United States is a representative democracy, and as noted by the Supreme Court, it “depends upon the ability of the people to make their wishes known to their representatives.”32 This should elevate an interest in protecting access to the government over most, if not all, business or competition related interests, where they are both implicated. In contrast, the dual-test system’s use of a flexible, plaintiff-friendly test for serial sham litigation risks the Supreme Court’s feared outcome: imputing to Congress an intent to invade freedoms protected by the Bill of Rights.33 The flexible, plaintiff-friendly test allows courts to condition access to freedoms solely on the subjective intent of litigants.34 Even the Tenth Circuit, which applies the dual-test, had noted that it requires courts to divine what occurs in the minds of individuals—a risky and uncertain undertaking for such an important right.35 Some courts applying the flexible, plaintiff-friendly test, including the Third Circuit, try to divine subjective intent for serial litigation from the win-loss rate of that litigant’s serial filings.36 But this risks barring basic freedoms from a litigant who has a genuine grievance but who turns out to be unsuccessful—especially considering that a lack of success could indicate a procedural mishap unrelated to a claim’s underlying merits. Given that some data shows that only 35 percent of civil plaintiffs win their cases,37 popularizing the Third Circuit’s flexible methodology could make many litigants unnecessarily vulnerable to antitrust liability and could chill the legitimate use of petitioning the government. This is concerning because unsuccessful but reasonable petitioning activities can still advance First Amendment interests by highlighting matters of public concern, advocating for the evolution of laws, and publicizing salient disputes.38 Fears of antitrust liability under the flexible approach could dampen the advancement of these interests. Following the strict PRE test better ensures the protection of these freedoms and the advancement of democratic interests.

A universal PRE test for both isolated and serial sham litigation mitigates three of the implementation difficulties presented by a dual-test system, thereby benefiting courts and litigants alike. First, the Third Circuit has noted that they do not set a minimum number of petitions needed before the flexible, plaintiff-friendly test for serial sham litigation is triggered.39 The question of when the plaintiff-friendly test should be triggered would be moot if the PRE test applied to all sham litigation allegations but at present, this question poses an obstacle courts must grapple with when choosing which of the two tests to apply in the dual-test circuits.40 While two petitions hardly seem sufficient to evince a clear pattern of competitive interference, courts in dual-test circuits are presently free to find otherwise and to subject such defendants to liability under the less rigorous test.

Second, in a dual-test jurisdiction, courts must determine how closely related petitions must be to constitute pieces of the same scheme, before subjecting them to either the strict, defendant-friendly test for individual petitions or the flexible, plaintiff-friendly test for serial litigation.41 For example, in Waugh Chapel South, LLC v. United Food & Commer. Workers Union Local 27, the plaintiff alleged a serial sham scheme undertaken by multiple filing parties, under diverse bodies of law, before different adjudicating tribunals, over a period of four years.42 There, the plaintiff asked the court to consider all of the petitions as part of one serial scheme.43 The court obliged by making one conclusory statement that “the union employed surrogate plaintiffs” without elaborating on its analysis of such.44 So, though many parties filed individual petitions in that case, the court considered the union to be behind them all.45 Waugh Chapel illustrates that no clear standards exist for analyzing how closely related parties, subject matters, filing dates, and adjudicating tribunals must be before a serial sham scheme can be found, thus triggering the flexible, plaintiff-friendly test. Without clear standards, courts in dual-test circuits are free to infringe upon First Amendment rights for vast swaths of diverse defendants and petitions that may have little or no relation to one another.

Third, the dual-test’s use of a flexible, plaintiff-friendly test for serial sham litigation may influence courts to divine the subjective intent of defendants, which relies not only on problematic win-loss rates, but also on evidence of internal communications of the defendant.46 This evidentiary reliance could incentivize firms to create paper trails falsely touting genuine petitioning interests before they attempt to interfere with competitors, thus increasing the amount of production for trials and rewarding firms skilled in manufacturing pretext. Because universal application of the PRE test requires an objectivity review at the outset, it obviates the need for an intent analysis, in many cases.47 As dual-test courts may rely on subjective intent alone in a plaintiff-friendly serial sham litigation case, such cases run the risk of relying on flimsy evidence of manufactured internal communications and motivations. This risk is slight under the universal PRE test which can never rely on subjective intent alone. As such, a universal PRE test would allow for greater ease and uniformity of application by courts.

One critique of the First and Seventh Circuits’ reading of PRE is that the Supreme Court did not explicitly state its intent to overrule the California Motor (considered to be the plaintiff-friendly) approach when it decided PRE. This argument misunderstands the two cases by reading them as espousing opposing or inconsistent views. Rather than overruling California Motor, PRE makes clear that the Supreme Court considered the two cases to be complementary, both recognizing an objective unreasonableness requirement.48 Likewise, the Seventh Circuit recognized that California Motor, like PRE, required objective unreasonableness for all sham litigation, but that the former was merely a stepping stone in the Supreme Court’s doctrinal development.49 The Court never suggested that the number of petitions would change the analysis.50 Rather, a categorical question was raised and answered: the sham litigation exception to Noerr-Pennington immunity requires objective unreasonableness.51 Thus, a proper reading of California Motor and PRE reveals the consistency between the opinions and indicates the impropriety of requiring a formal overruling of California Motor before applying the strict, PRE test to all sham allegations.

Dual-test circuits further critique the universal PRE approach by claiming that the PRE test is ill-suited to deal with allegations of serial sham litigation.52 The Fourth Circuit has argued that the PRE test is not used for serial sham claims because evaluating a large pattern of conduct differs from reviewing individual lawsuits, and because targeting the whole scheme provides judges the benefit of aggregate review when assessing intent and competitive harm.53 The Third Circuit has argued that the best way to determine whether Noerr-Pennington immunity is justified is, first, by categorizing the allegation as singular or serial, to more easily determine whether it is pretextual.54 It argued that a more flexible standard is better for patterns because pattern cases involve more complex facts, greater harms, and the reviewing court has a better vantage point.55 While these arguments and the inclination to be more skeptical towards repeat-petitioners is logically sound, it bypasses the Supreme Court’s express wishes. In PRE, the Court re-emphasized its fear that the term “sham” litigation would be manipulated by courts and applied to any “activity they deem unworthy of antitrust immunity.”56 The Court also observed that over time, this fear had been realized, as lower courts adopted an “array of definitions” for what constituted sham litigation.57 The Court therefore wrote its PRE decision with an eye toward precluding lower courts from continuing to muddle the doctrine by creating their own tests and definitions for sham schemes.58 Nonetheless, dual-test circuits have continued to ignore the Supreme Court’s clearly-defined, binding definition for all sham allegations. Even though the wisdom of a universal, strict PRE test can be debated, all courts are clearly bound by it.

A third critique of a universal, strict sham litigation test is that when constitutional rights are protected too expansively by antitrust laws, there can be no effective antitrust enforcement.59 As an analogy, the Supreme Court pointed out that an overly broad reading of the free speech protections would immunize conspiracies between competitors whenever they were carried out through communications.60 Similarly, one might argue that an expansive right to petition could also immunize harmful anticompetitive practices such as harassing competitors or blocking access to tribunals, thereby draining a competitor’s business and entrenching a monopolist.61 However, the universal PRE test strikes the proper balance between protecting these fundamental freedoms and policing misconduct by prioritizing reasonable access to government over commercial interests. The universal PRE test recognizes that petitions can be unlawful while prioritizing First Amendment freedoms, by acknowledging that “there is [no] pragmatic reason to presume that [PRE’s] protections for nonfrivolous petitioning activity disappear merely because the defendant exercise its right to engage in such activity on multiple occasions.”62 In other words, the number of petitions involved should not change the level of deference these First Amendment activities receive. Furthermore, the fact that these activities implicate competitors does not change the character of the right involved.63 Under the PRE test, any litigation which is both objectively and subjectively baseless could be held an antitrust violation. However, any attempt to petition the government that has objective merit will be immunized. This is not the case in dual-test circuits. There, courts are free to punish firms based only on speculations regarding the purposes behind litigation, without assessing or crediting objective merit.64 This could result in inconsistent application of immunity and confusion for firms. Uncertainty could cause a chilling effect on firms interested in protecting their rights through petitions due to fears they may be subjected to unfriendly, speculative antitrust claims for doing so. Furthermore, under the universal PRE test, plaintiffs would be free to: (1) identify a group of objectively unreasonable petitions against them from the collection of alleged sham petitions, (2) challenge only those objectively unreasonable petitions in court, and (3) request an injunction against the anticompetitive scheme. If such plaintiffs were successful, the baseless litigation should end; if plaintiffs fail to identify a group of unreasonable petitions, they should hardly be granted an antitrust remedy against further valid petitions.65 While the universal PRE test is more protective of free speech than the dual-test system, it appropriately weighs First Amendment freedoms with competitors’ interests in preventing abuses of Noerr-Pennington immunity.

Finally, some may view the universal PRE test as less consistent with ethics and fairness. A narrow sham exception could, arguably, immunize activities that are intended to harm competition so long as some merit can be found. However, this discomfort can and should be addressed by Congress, rather than the courts. Courts lack the authority to carve out First Amendment protections to make way for antitrust laws. While dual-test circuits have correctly recognized the seriousness of potential serial sham litigation, they should wait for Congress to clearly state its intent, through legislation, to curb basic freedoms and make way for antitrust claims, before those circuits unilaterally do so. As the Supreme Court stated, the Sherman Act should not be extended to control the right to petition simply because a firm’s petitioning activity may be unethical and commercial in nature.66 Furthermore, a focus on strict, uniform tests over subjective analyses of fairness, is consistent with traditional antitrust jurisprudence. For example, the freedom to contract, or to refuse to contract, with competitors has been protected from antitrust scrutiny, even when results seem unfair.67 This is because firms have a long-recognized right of autonomy over their businesses.68 Similarly, when assessing predatory pricing allegations, courts do not consider whether the firm instituting the allegedly harmful pricing scheme intended to destroy its competitors, and instead only analyze the objective measure of the competitors’ prices to its costs.69 While the universal PRE test could immunize some behaviors that interfere with a competitor, this approach is nevertheless consistent with general antitrust jurisprudence which values firm autonomy and favors objective tests over intent-based searches.

Although serial sham litigation can pose a risk of interference with competitors or misuse of government resources, antitrust law should not be manipulated to manufacture a fix. The First Amendment right to petition the government should be broadly protected and not infringed upon through inventive judicial interpretations. As such, when courts evaluate allegations of repetitious, bad faith litigation, they should adhere to the Supreme Court’s instruction and apply the PRE test universally. Applying this test to both individual and serial allegations of sham litigation is better aligned with antitrust doctrinal history, more consistent with the wishes of the Supreme Court and Congress and provides for a more fulsome protection of fundamental First Amendment freedoms.

* Malory Weigel is a J.D. Candidate (2026) at New York University School of Law. This Contribution examines circuit courts’ interpretations of the Supreme Court’s decision in Professional Real Estate Investors, Inc. v. Columbia Pictures Industries, Inc., and distills one side of the arguments. The views expressed herein do not necessarily represent the author’s views.

1. U.S. Const. amend I.

2. Eastern R.R. Presidents Conf. v. Noerr Motor Freight, Inc., 365 U.S. 127, 135–36 (1961); United Mine Workers of Am. v. Pennington, 381 U.S. 657, 669–70 (1965).

3. See Noerr, 365 U.S. at 144.

4. Id.

5. Id.

6. California Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 512 (1972) (internal quotation marks omitted).

7. Prof’l Real Estate Inv’rs, Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49, 60–1 (1993).

8. See Primetime 24 Joint Venture v. Nat’l Broad., Co., 219 F.3d 92, 101 (2nd Cir. 2000); Hanover 3201 Realty, LLC v. Vill. Supermarkets, Inc., 806 F.3d 162, 180 (3rd Cir. 2015); Waugh Chapel South, LLC v. United Food & Commer. Workers Union Local 27, 728 F.3d 354, 363–64 (4th Cir. 2013); California Motor, 404 U.S. at 513; CSMN Invs., LLC v. Cordillera Metro. Dist., 956 F.3d 1276, 1288 (10th Cir. 2020).

9. USS-POSCO Indus. v. Contra Costa County Bldg. & Constr. Trades Council, 31 F.3d 800, 810 (9th Cir. 1994) (stating that the court was not persuaded that PRE overruled California Motor, and that the two tests can be reconciled).

10. Id. at 811.

11. See P.R. Tel. Co. v. San Juan Cable LLC (“P.R.T.C.”), 874 F.3d 767, 771 (1st Cir. 2017); U.S. Futures Exchange, LLC v. Bd. of Trade, 953 F.3d 955, 964 (7th Cir. 2020).

12. PRE, 508 U.S. at 51.

13. Id. at 57.

14. Id. at 51–6.

15. Id. at 58.

16. Id. at 58 (quoting Otter Tail Power Co. v. United States, 410 U.S. 336, 380 (1973) (emphasis added).

17. Id. at 60 (internal quotation marks omitted).

18. See PRE, 508 U.S. at 58–9 (noting Court has “repeatedly reaffirmed that evidence of anticompetitive intent or purpose alone cannot render otherwise legitimate activity a sham.”).

19. Noerr, 365 U.S. at 138–39.

20. Id. at 139.

21. Pennington, 381 U.S. at 669.

22. PRE, 508 U.S. at 57.

23. Id.

24. Id. at 60.

25. See, e.g., Noerr, 365 U.S. at 141.

26. Id. (“All of [Congress’] caution would go for naught if we permitted an extension of the Sherman Act to regulate activities of [political] nature simply because those activities have a commercial impact . . .”).

27. Id. at 137–38.

28. Id.

29. See, e.g., Tennessee Valley Auth. v. Hill, 437 U.S. 153, 184 (1978) (holding that courts must apply the laws in accordance with the intent of Congress in enacting the statute).

30. Noerr, 365 U.S. at 138.

31. See Zadvydas v. Davis, 533 U.S. 678, 689 (2001) (noting that when a statute raises a serious doubt as to its constitutionality, the court should construe it in a way that does not raise those questions, where possible).

32. Noerr, 365 U.S. at 137.

33. Id. at 138.

34. CSMN, 956 F.3d at 1286.

35. Id.

36. See, e.g., Hanover, 806 F.3d at 180 (stating that a holistic review may include looking at defendant’s win-loss percentage as evidence of subjective intent).

37. New Research Sees Astonishing Drop in Win Rates for Federal Plaintiffs, The National Trial Lawyers, https://thenationaltriallawyers.org/article/new-research-sees-astonishing-drop-in-win-rates-for-federal-plaintiffs/ (last visited Oct. 31, 2025).

38. See CSMN, 956 F.3d at 1286 (emphasizing the importance of preserving the right to bring unsuccessful yet reasonable suits when affirming the universally applicable PRE test).

39. Hanover, 806 F.3d at 181.

40. See, e.g., id. (“Defendants argue as a threshold matter that the four actions they filed against Hanover Realty are too few to even qualify as a pattern or series. We are not convinced.”).

41. See, e.g., CSMN, 956 F.3d at 1288 (finding that a scheme was not successfully alleged because although the petitioners appeared before three tribunals, each of these appearances were appeals originating from the same petition, so only one central petitioning activity was alleged).

42. Waugh Chapel, 728 F.3d at 357–58.

43. Id.

44. Id. at 357.

45. Id.

46. Hanover, 806 F.3d at 168 (considering emails of the defendant praising itself for delaying the development process of its competitor).

47. See, e.g., U.S. Futures Exchange, 953 F.3d at 966 (finding that the lobbying activity was objectively reasonable and ending the sham inquiry, against plaintiff’s request for an intent analysis).

48. PRE, 508 U.S. at 58.

49. U.S. Futures, 953 F.3d at 964.

50. Id. at 965. (“We, too, find ‘little logic’ in concluding a petitioner loses the right to file an objectively reasonable petition merely because it chooses to exercise that right more than once in the course of pursuing its desired outcome.”).

51. See P.R.T.C., 874 U.S. at 771 (interpreting PRE as requiring unreasonableness as a prerequisite to classifying any conduct as a sham).

52. Waugh Chapel, 728 F.3d at 364.

53. Id.

54. Hanover, 806 F.3d at 180.

55. Id.

56. PRE, 508 U.S. at 55.

57. Id.

58. Id.

59. See, e.g., Primetime 24, 219 F.3d at 100 (noting that Noerr-Pennington immunity could not be read too expansively or it would protect all horizontal price fixing agreements when the parties also wished to propose that price to the government for ratemaking or price supports).

60. See California Motors, 404 U.S. at 514 (emphasizing that an expansive interpretation of free speech “would make it practically impossible ever to enforce laws against agreements in restraint of trade as well as many other agreements and conspiracies”).

61. Id. at 511.

62. P.R.T.C., 874 U.S. at 772.

63. See Noerr, 365 U.S. at 141 (noting that just because petitioning activities have a “commercial impact” does not mean that antitrust laws should regulate them).

64. See, e.g., Waugh Chapel, 728 F.3d at 365 (denying defendant’s motion to dismiss based on Noerr-Pennington immunity even though “some of the legal challenges . . . may have been justifiable in one sense or another” and one of the petitions involved “could be characterized as successful”).

65. P.R.T.C., 874 U.S. at 771 (“where a party files a large number of petitions—here twenty-four according to PRTC—and every single one is objectively reasonable, we struggle to see how a jury could reasonably conclude that the party was filing petitions ‘regardless of the merits of the cases.’”).

66. Noerr, 365 U.S. at 512.

67. See, e.g., Verizon Commc’ns, Inc. v. L. Offs. of Curtis V Trinko, LLP, 540 U.S. 398, 408 (2004) (holding that Verizon was not liable under antitrust laws for failing to supply services to a rival, even though it was statutorily required to do so under the Telecommunications Act of 1996).

68. Id.

69. Brooke Grp., Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209, 223 (1993) (holding that an antitrust plaintiff cannot succeed on a predatory pricing claim without evidence of below-cost pricing).