Tag: Antitrust Law

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.

by Cordelia Bell^*

Group boycotts are a powerful form of political expression, yet under current antitrust law, participants risk steep fines or even imprisonment if their actions are deemed economically motivated. In FTC v. Superior Court Trial Lawyers Association, the Supreme Court applied per se antitrust liability to a boycott with both economic and political aims—raising serious First Amendment freedom of expression concerns. This Contribution argues that courts should adopt the more flexible, defendant-friendly rule of reason standard for group boycott claims. Not only does this approach better safeguard expressive conduct, but it also aligns with the broader shift in antitrust law from rigid rules to nuanced standards.