Puerto Rico Tele. Co., Inc. v. San Juan Cable LLC

United States Court of Appeals
For the First Circuit

No. 16-2132

PUERTO RICO TELEPHONE COMPANY, INC.,

Plaintiff, Appellant,

v.

SAN JUAN CABLE LLC,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

[Hon. John A. Woodcock, Jr.,* U.S. District Judge]

Before

Torruella, Kayatta, and Barron,
Circuit Judges.

Patrick J. Pascarella, Jr., with whom Benjamin C. Sassé and
Tucker Ellis LLP were on brief, for appellant.
Jacob (Yaakov) M. Roth, with whom Brinton Lucas, Thomas
Demitrack, Brian K. Grube, Jones Day, Orlando Fernandez, and
Orlando Fernandez Law Offices were on brief, for appellee.

October 31, 2017

* Of the District of Maine, sitting by designation.
 KAYATTA, Circuit Judge. Puerto Rico Telephone Company,

Inc., (PRTC) sought permission from the Puerto Rico

Telecommunications Regulatory Board (TRB) to offer internet

protocol television service to the residents of Puerto Rico. At

the time, San Juan Cable LLC, doing business as "OneLink," provided

cable television service to residents of several municipalities in

Puerto Rico, including San Juan. Not eager to face competition,

OneLink petitioned the TRB and other government officials and

tribunals, including Commonwealth and federal courts, to deny,

slow down, or otherwise impede PRTC's efforts. After eventually

obtaining the needed permission from the TRB, PRTC filed this

antitrust action claiming that OneLink's interference with PRTC's

permitting efforts constituted unlawful monopolization and

attempted monopolization in violation of both the Sherman Act, 15

U.S.C. § 2, and the Puerto Rico Anti-Monopoly Act, P.R. Laws Ann.

tit. 10, §§ 257–276. Granting summary judgment to OneLink, the

district court concluded that OneLink's actions were immunized

from suit under the Noerr-Pennington doctrine, which conditionally

protects the right to petition the government. See E. R.R.

Presidents Conference v. Noerr Motor Freight, Inc. (Noerr), 365

U.S. 127 (1961); United Mine Workers of Am. v. Pennington

(Pennington), 381 U.S. 657 (1965). In so ruling, the district

court rejected PRTC's argument that the facts could support a

finding that OneLink abused its right to petition and could be

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found liable under the so-called "sham" exception to the Noerr-

Pennington immunity. See Cal. Motor Transp. Co. v. Trucking

Unlimited, 404 U.S. 508, 511–12 (1972) (extending both Noerr-

Pennington immunity and the sham exception to petitioning of courts

and administrative agencies). For the following reasons, we agree

with the district court that the facts in this case could not

subject OneLink to liability under the sham exception.

I.

A.

The parties' disagreement on appeal begins with

OneLink's win-loss record in its multi-tribunal petitioning

activity aimed at impeding PRTC's efforts to secure permission to

compete against OneLink. A detailed description of OneLink's

filings with the TRB, the Puerto Rico courts, and the federal

courts, its communications with Puerto Rico officials and federal

officials, and the resolutions of those filings and communications

can be found in the district court's two published opinions. See

P.R. Tel. Co. v. San Juan Cable Co. (PRTC I), 196 F. Supp. 3d 207,

215–24 (D.P.R. 2016); P.R. Tel. Co. v. San Juan Cable Co.

(PRTC II), 196 F. Supp. 3d 248, 253–98 (D.P.R. 2016). PRTC claims

that those filings and communications collectively constituted

twenty-four "petitions" in the form of requests that a court or

other government tribunal, agency, or official take action adverse

to PRTC's license application, and that OneLink failed to prevail

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on any of those petitions. OneLink avoids taking a firm position

on its win-loss record apart from suggesting that the district

court's count (four wins out of thirteen petitions) was closer to

the mark.

The parties' divergent counts flow from disagreements

about whether to treat motions filed in the course of a single

proceeding as separate petitions, and whether to rank an

interlocutory procedural win as a loss if the proceeding ultimately

resulted in a decision against OneLink. Thus, for example, the

district court counted OneLink's request to intervene in the second

franchise proceeding before the TRB along with several other

motions filed in connection with that request as a single petition,

see PRTC II, 196 F. Supp. 3d at 324, 337, while PRTC argues that

each motion filed with the TRB constitutes a separate petition.

Likewise, the district court counted as a win the issuance of an

order to show cause why a temporary restraining order should not

issue by a federal district court in a suit that was ultimately

dismissed as moot, see id. at 279–80, 325, 338, while PRTC argues

that merely securing a show cause order is not a win.

For our purposes, we need not resolve these disputes

concerning OneLink's win-loss record. Rather, we can assume, as

PRTC argues, that OneLink's various filings can be viewed as

twenty-four separate petitions, and that none resulted in a

meaningful victory. We must also assume, though, that all twenty-

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four filings were "objectively reasonable" in the sense that a

"reasonable litigant could realistically expect success on the

merits." Prof'l Real Estate Inv'rs, Inc. v. Columbia Pictures

Indus., Inc. (PREI), 508 U.S. 49, 60 (1993). We make this latter

assumption because the district court so found after examining

each of OneLink's various filings, see PRTC II, 196 F. Supp. 3d at

325-35, and PRTC has waived any challenge to those findings. PRTC

did not make any such challenge in its main brief on appeal. See

Sparkle Hill, Inc. v. Interstate Mat Corp., 788 F.3d 25, 29 (1st

Cir. 2015) ("[W]e do not consider arguments for reversing a

decision of a district court when the argument is not raised in a

party's opening brief."); see also Nat'l Foreign Trade Council v.

Natsios, 181 F.3d 38, 60 n.17 (1st Cir. 1999) ("We have repeatedly

held that arguments raised only in a footnote or in a perfunctory

manner are waived."). It also failed to make any case for excusing

the waiver in its reply brief1 or at oral argument. Indeed, the

entire oral argument proceeded on the assumption that the district

court's findings that all the petitions were objectively

reasonable would stand. Although we can excuse waiver of this

sort in certain cases, this is not such a case. Assessing the

merits of OneLink's petitions requires detailed analyses of a large

1Although the reply brief contains arguments in two footnotes
that some of the petitions were not objectively reasonable, it
does not make any effort to explain why this court should excuse
PRTC's failure to make these arguments in its opening brief.

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number of different filings. We decline to undertake those

analyses without briefing.2

B.

PRTC's waiver of any argument that some of OneLink's

numerous filings were baseless creates an immediate obstacle to

PRTC's ability to maintain this lawsuit. The general rule is that

a defendant cannot be held liable under the Sherman Act for

petitioning the government, including by filing a lawsuit. See

Cal. Motor Transp., 404 U.S. 510–13. PRTC relies on an important

exception to that rule, known as the "sham" exception. See id.

(citing, inter alia, Noerr, 365 U.S. at 144). In PREI, however,

the Supreme Court held that a lawsuit, even when employed as an

anticompetitive weapon, could only fall within the sham exception

if the suit was "objectively baseless in the sense that no

reasonable litigant could realistically expect success on the

merits." 508 U.S. at 60–61. We assume, as do the parties, that

PREI also applies to a petition filed before an administrative

agency or another executive official. See 508 U.S. at 59–60 ("We

dispelled [in Columbia v. Omni Outdoor Advertising, Inc., 499 U.S.

2As indicated above, PRTC does argue that the district court
erred in finding that OneLink actually prevailed on four petitions.
PRTC also claims that the district court neglected to assess one
petition filed by a third party because it erroneously deemed the
petition not to have been funded by PRTC. PRTC does not, however,
argue in its main brief that any of those five petitions were
actually baseless in the sense of lacking any reasonably realistic
prospect of success.

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365 (1991)] the notion that an antitrust plaintiff could prove a

sham merely by showing that its competitor's purposes were to delay

[the plaintiff's] entry into the market and even to deny it a

meaningful access to the appropriate . . . administrative and

legislative fora.")(internal quotation marks omitted, brackets and

ellipsis in original). Given PRTC's failure to argue that any one

of OneLink's petitions was objectively baseless, it is clear that

no single petition could support the imposition of antitrust

liability on OneLink. Accordingly, PRTC must predicate its appeal

on the contention that the serial nature of OneLink's petitioning

materially distinguishes this case from PREI; that is to say, a

jury could find OneLink liable for launching a fusillade of

ultimately unsuccessful petitions even if no one petition was

sufficiently baseless to fit within the "sham" exception under

PREI. We therefore turn next to that contention.

C.

In pursuit of its effort to distinguish PREI, PRTC tries

to find company in the decisions of several other circuits that

have construed California Motor Transport and PREI as compatibly

establishing different tests depending on whether more than one

petition is challenged as abusive. In brief, this argument first

restricts PREI's "objectively baseless" requirement to cases

involving a single petition rather than a series of petitions. To

assess a series of petitions, the argument relies instead on

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language in California Motor Transport describing as outside the

scope of Noerr-Pennington immunity the "institut[ion of]

proceedings and actions . . . with or without probable cause, and

regardless of the merits of the cases," 404 U.S. at 512. As

construed by PRTC, this argument also reads "with or without

probable cause" and "regardless of the merits," id., as including

both petitions brought "with . . . probable cause" and with

"merit[]" where the defendant's decision to file the series of

petitions paid no heed to whether they had merit. So framed, the

argument views PREI very much through the lens of Justice Stevens's

concurrence. See PREI, 508 U.S. at 73 (Stevens, J., concurring in

the judgment) ("Repetitive filings, some of which are successful

and some unsuccessful, may support an inference that the process

is being misused. In such a case, a rule that a single meritorious

action can never constitute a sham cannot be dispositive." (citing

Cal. Motor Transp., 404 U.S. 508)).

The circuit court opinions to which PRTC points--that is

to say opinions of the four circuits to have addressed similar

arguments directly--all in one way or another adopt some variant

of this view of the respective applicability of PREI and California

Motor Transport. See Hanover 3201 Realty LLC v. Vill.

Supermarkets, Inc., 806 F.3d 162, 179–81 (3d Cir. 2015), cert.

denied, 136 S. Ct. 2451 (2016); Waugh Chapel S., LLC v. United

Food & Commercial Workers Union Local 27, 728 F.3d 354, 363–64

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(4th Cir. 2013) (doing so in the context of the Noerr-Pennington

doctrine as applied to an unfair labor practices claim); Primetime

24 Joint Venture v. Nat'l Broad. Co., 219 F.3d 92, 100–01 (2d Cir.

2000); USS-POSCO Indus. v. Contra Costa Cty. Bldg. & Constr. Trades

Council, AFL-CIO (USS-POSCO), 31 F.3d 800, 810 (9th Cir. 1994)

(concluding that PREI and California Motor Transport "appl[y] to

different situations").

We find ourselves quite skeptical of the notion that a

defendant's willingness to file frivolous cases may render it

liable for filing a series of only objectively reasonable cases.

Although presented with a record involving the filing of only one

lawsuit, the court in PREI wrote nothing to suggest that its ruling

would have been different had the defendant filed a series of

objectively reasonable suits. Rather, the Court addressed the

more categorical question "whether litigation may be a sham merely

because a subjective expectation of success does not motivate the

litigant," and ruled that "an objectively reasonable effort to

litigate cannot be a sham regardless of subjective intent." 508

U.S. at 57. Similarly, in describing California Motor Transport,

PREI trained its attention not on the difference between a single

suit and a series of suits, but rather on the difference between

"objectively reasonable claims" and "a pattern of baseless,

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repetitive claims." Id. at 58.3 Nor is there any pragmatic reason

to presume that PREI's protections for nonfrivolous petitioning

activity disappear merely because the defendant exercises its

right to engage in such activity on multiple occasions. One large

lawsuit or intervention in an agency proceeding can impose much

more of a burden on a competitor than might a series of smaller

claims. Also, 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." Cal. Motor Transp., 404

U.S. at 512. To the contrary, the larger the sample size provided

by the accumulating petitions, none of which are objectively

baseless, the more likely it is that the serial litigant must have

exercised a fair amount of discretion in eschewing frivolous

claims. Cf. USS-POSCO, 31 F.3d at 811 ("The fact that more than

half of all the actions as to which we know the results turn out

to have merit cannot be reconciled with the charge that the unions

were filing lawsuits and other actions willy-nilly without regard

to success."). And while some circuits treat less skeptically

3
California Motor Transport does at the same time remain
independently relevant to misconduct, such as fraud, bribery or
threats, in connection with the filing of claims, baseless or not.
404 U.S. at 512-13. See also id. at 518 (Stewart, J., concurring)
(chronicling threats).

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than do we the notion that PREI does not apply fully to the filing

of a series of suits, none of those circuits have ever sustained

a finding of liability while simultaneously determining that no

frivolous petitions were filed.

Of course the absence of any outright victory in so many

forays similarly makes it quite clear that the likelihood of

prevailing was not paramount in OneLink's calculus when deciding

whether to petition. But the task here is to identify sham

litigation, not probable winners. And while we can see the logic

inherent in reasoning that a nonfrivolous suit might be viewed

differently when flown in a flock of frivolous suits, we see little

logic in concluding that an exercise of the right to file an

objectively reasonable petition loses its protection merely

because it is accompanied by other exercises of that right.

This is not a case in which it could reasonably be said

that the petitioning activity provided no reasonable prospect of

a benefit to OneLink apart from inflicting costs on PRTC. See

PREI, 508 U.S. at 68–69 (Stevens, J., concurring in the judgment)

("The label 'sham' . . . . might also apply to a plaintiff who had

some reason to expect success on the merits but because of its

tremendous cost would not bother to achieve that result without

the benefit of collateral injuries imposed on its competitor by

the legal process alone."). Rather, had OneLink received the

relief for which it petitioned, it would have received the benefits

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of lawfully delaying or restricting the entry of a competitor into

its market. Nor is this a case in which a monopolist deterred

competition by threatening to file suits without regard to their

merit, as in California Motor Transport. We therefore need not

decide how we would rule in either of those sorts of cases.

II.

For the foregoing reasons, we affirm the district

court's orders granting summary judgment in favor of OneLink.4

-Concurring Opinions Follows-

4 PRTC does not dispute that Noerr-Pennington immunity applies
to the claim under the Puerto Rico Anti-Monopoly Act. It has also
not argued that the district court should have remanded the Puerto
Rico claims instead of granting summary judgment on those claims
along with the federal claims. We also need not consider PRTC's
argument that the district court erred in its finding on causation
in the first summary judgment decision. Our holding accepts that
Noerr-Pennington immunity applied to each petition because of its
objective reasonableness, not because of its causal role.

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 BARRON, Circuit Judge, with whom TORRUELLA, Circuit

Judge, joins, concurring. The parties ask us to decide -- one way

or the other -- whether a monopolist may be held liable under

antitrust law for filing a series of petitions against a competitor

(whether in a court or in an administrative proceeding) when no

single one of those filings is baseless.5 An unequivocal "no"

would close off the so-called "sham" exception to Noerr-Pennington

immunity in such a case. And, in doing so, such an answer would

afford litigious monopolists a potentially significant safe harbor

from antitrust liability. In particular, it would protect even a

monopolist that used a barrage of filings to make an upstart's own

attempt to petition for an operating license so costly that the

upstart must give up its attempt to compete for market share.

But, in affirming the grant of summary judgment in the

defendant's favor, we do not establish such a limit on the scope

of the sham exception. We avoid doing so because we do not hold

that the "objectively baseless" requirement for triggering the

sham exception set forth in the single-petition case of

Professional Real Estate Investors, Inc. v. Columbia Pictures

Industries, Inc., 508 U.S. 49, 60 (1993), necessarily applies to

5
The case concerns an alleged monopoly violation under both
the Sherman Act, 15 U.S.C. § 2, and the Puerto Rico Anti-Monopoly
Act, P.R. Laws Ann. tit. 10, § 260. Puerto Rico's anti-
monopolization provision corresponds with that of the Sherman Act,
and the parties have not suggested that the provisions are
interpreted differently.

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each and every case involving a pattern of petitioning. We instead

rely on a more record-based, case-specific line of reasoning that,

as I read our opinion, leaves open the possibility that, PREI

notwithstanding, a monopolist might be liable under the antitrust

laws for engaging in a pattern of petitioning, even though no

single filing in that pattern is objectively baseless. I agree

with this prudent approach. I write separately, however, to say

more about the particular type of pattern petitioning case to which

I have alluded, for it is not expressly mentioned in our opinion

and bears some resemblance to the case at hand.

I.

The Sherman Act seeks to "preserv[e] free and unfettered

competition as the rule of trade." N. Pac. Ry. Co. v. United

States, 356 U.S. 1, 4 (1958). To further that aim, Congress used

broad terms in the Act "in order to prevent creative monopolists

from escaping liability by adopting ever new forms of combinations

or anticompetitive conduct." 2 Julian O. von Kalinowski et al.,

Antitrust Laws and Trade Regulation § 25.01 (2d ed. 2017).

In response, the federal courts have adopted a "common-

law approach" in construing the limits that the antitrust laws

place on the efforts of market incumbents to leverage their power

to unfairly restrict competition. Leegin Creative Leather

Products, Inc. v. PSKS, Inc., 551 U.S. 877, 899 (2007). Courts

thus generally analyze restraint-of-trade claims according to the

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"rule of reason," which in operation is hardly a rule at all, and

instead requires the "finder of fact [to] decide whether the

questioned practice imposes an unreasonable restraint on

competition, taking into account a variety of factors." State Oil

Co. v. Khan, 522 U.S. 3, 10 (1997). And, likewise, courts apply

what amounts to a quite similar "'common law' against

monopolizing." Berkey Photo, Inc. v. Eastman Kodak Co., 603 F.2d

263, 272 (2d Cir. 1979).

At the same time, market participants, including

monopolists, enjoy a broad right to petition their government under

the First Amendment. See E. R.R. Presidents Conference v. Noerr

Motor Freight, Inc., 365 U.S. 127, 138 (1961). This right protects

not only lobbying the legislature but also litigating in court and

participating in administrative proceedings. See California Motor

Transport Co. v. Trucking Unlimited, 404 U.S. 508, 510 (1972).

Recognizing that courts "cannot . . . lightly impute to

Congress an intent to invade these freedoms," Noerr, 365 U.S. at

138, the Supreme Court established the Noerr-Pennington doctrine.

See United Mine Workers of America v. Pennington, 381 U.S. 657,

669 (1965); Noerr, 365 U.S. at 136. That doctrine generally makes

petitioning activity immune from antitrust liability, subject,

however, to the important exception that immunity is not available

to petitioning activity that is just a "sham" for impermissible

anti-competitive conduct. Noerr, 365 U.S. at 144.

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 Courts thus necessarily confront the following

difficulty in defining the scope of the sham exception. A decision

to immunize monopolists from antitrust liability for their filings

-- by narrowly construing the exception's scope -- surely protects

the First Amendment right of petition. But, such a decision also

may provide unnecessarily broad protection and thereby unduly

impede the "free and unfettered competition" that Congress wished

to foster when it broadly empowered courts to hold monopolists

accountable for their anti-competitive schemes. N. Pac. Ry. Co.,

356 U.S. at 4.

To navigate this difficulty, it is important not to view

the sham exception as a rigid rule. Rather, we should construe

that exception -- just as we construe the antitrust laws generally

-- in accord with a rule of reason. I am therefore reluctant to

conclude that the "objectively baseless" requirement set forth in

PREI, which involved a single filing in a particular context,

necessarily governs every type of case involving the filing of a

series of petitions.

Heightened antitrust concerns might arise in particular

pattern cases that would warrant an approach that is more sensitive

to circumstance, so as to provide greater protection of competition

from monopolistic schemes. Nor is it clear to me that such a

common-law like approach to defining shams would invariably trench

on First Amendment rights. After all, the tort of abuse of process

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is itself sensitive to circumstance, but, presumably, the First

Amendment is not infringed just because the tort imposes liability

on some suits that have some merit. See, e.g., Poduska v. Ward,

895 F.2d 854, 857 (1st Cir. 1990); Restatement (Second) of Torts

§ 682 cmt. a (Am. Law Inst. 1977).

I also am not convinced that precedent forecloses this

more context-sensitive approach to pattern cases. I note that

PREI concerned an attempt to apply the sham exception to the filing

of a single copyright infringement suit, 508 U.S. at 52, and thus

did not directly address whether a pattern of filings outside that

context might raise distinct concerns. And while the Court did

speak broadly in setting forth the "objectively baseless"

requirement in that case, id. at 60-66, three concurring Justices

did not appear to read that decision to set forth a holding that

imposed the baseless requirement to pattern cases. See id. at 66

(Souter, J., concurring); Id. at 67 (Stevens, J., concurring).

Nor have we or any other circuit held that PREI

automatically imposes its "objectively baseless" requirement in

each and every pattern case. In fact, the four circuits to have

addressed the issue generally apply a "holistic" analysis that

broadly considers a variety of factors in pattern cases to

determine whether what is claimed to have been the exercise of the

right of petition was really just a sham for concealing anti-

competitive conduct. See Hanover 3201 Realty, LLC v. Vill.

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Supermarkets, Inc., 806 F.3d 162, 180-81 (3d Cir. 2015); Waugh

Chapel South, LLC v. United Food & Commercial Workers Union Local

27, 728 F.3d 354, 363–64 (4th Cir. 2013); see also Primetime 24

Joint Venture v. Nat'l Broad. Co., 219 F.3d 92, 101 (2d Cir. 2000);

USS-POSCO Indus. v. Contra Costa Cty. Bldg. & Constr. Trades

Council, AFL-CIO, 31 F.3d 800, 810–11 (9th Cir. 1994).

Finally, PREI did not purport to overrule California

Motor, which rejected the dismissal of an antitrust complaint that

challenged a pattern of petitioning as a sham without alleging

that any of the defendants' underlying filings was baseless. The

Court held that the case could proceed to trial, 404 U.S. at 516,

even though the complaint alleged merely that the defendants had

publicly announced and then implemented a policy of opposing "with

or without probable cause, and regardless of the merits" any of

the plaintiffs' applications for licenses that the plaintiffs

needed in order to enter the market at all. Id. at 512.

II.

Assuming, then, that PREI's "objectively baseless"

requirement does not necessarily control the outcome of this case,

there is still the question whether PRTC has provided enough

evidence of sham petitioning to survive OneLink's motion for

summary judgment. PRTC's case does not much resemble either type

of pattern case involving only non-baseless filings that our

opinion expressly identifies as ones that might survive PREI. See

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Ct. Op. at 11-12. But, PRTC does contend that its allegations are

close enough to those involved in California Motor to warrant

application of the sham exception, and that argument merits further

consideration.

PRTC's case is not on all fours with California Motor in

that PRTC does not allege that OneLink made a public threat to

make baseless filings like the antitrust defendant in California

Motor allegedly did. But, I am not convinced that the scope of the

sham exception described in California Motor is necessarily

limited by the fact that the complaint in that case alleged such

a public threat.

In California Motor, the complaint alleged that certain

incumbent trucking companies had set up a trust fund to finance

opposition to their would-be competitors' applications for truck

operating rights, informed their would-be competitors that they

intended to oppose "every application" "with or without probable

cause and regardless of the merits," and then made a slew of

adverse filings, seemingly in accord with that threat. 404 U.S.

at 518 (Stewart, J., concurring). Faced with that alleged abuse

of the governmental process, California Motor reasoned that the

right of petition under the First Amendment does not extend to the

use of that right to deprive would-be competitors of their own

right of petition to secure a right to enter the market and thereby

take on the monopolist. Id. at 513–15 (majority opinion).

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 The Court drew that fairly uncontroversial proposition

from Associated Press v. United States, 326 U.S. 1 (1945), which

held that the Associated Press's exclusive membership policies

could still incur antitrust liability because the freedom to

publish protected by the First Amendment does not extend to a

"freedom to combine to keep others from publishing." California

Motor, 404 U.S. at 514 (quoting Associated Press, 326 U.S. at 20).

And, it is not clear to me that the Court, in relying on that

logic, was suggesting that a campaign of harassing litigation aimed

at destroying a would-be market entrant's effort to petition for

a license to operate -- by making it too costly to pursue -- is

any less a sham just because no public threat of baseless filings

is made.

Nor is it clear to me that PREI requires that we limit

California Motor's reach to cases involving such threats. After

all, PREI did not involve an attempt by an incumbent market actor

to destroy a rival's right to petition for a license to compete

for a share of the incumbent's market. Rather, in PREI, various

movie studios filed a copyright infringement action against hotel

operators who rented videodiscs of the studios' movies to hotel

guests and sought to develop a market for the viewing of the videos

at other hotels. 508 U.S. at 51-52. The hotel operators then

counterclaimed that the studios' suit was a sham because that claim

for copyright protection, even though potentially meritorious,

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"cloaked" the studios' effort to monopolize and restrain trade in

video entertainment services at hotels. Id. at 52.

PREI thus did not face an alleged clash of petition

rights remotely like in California Motor. PREI confronted only

the stark contention that challenged petitioning activity is a

sham for anticompetitive conduct if one market participant

petitions to secure its legal right in order to maintain an

economic advantage over a competitor (in that case by vindicating

the right not to have its intellectual property infringed) by

filing a non-frivolous suit. In PREI, the Court quite

understandably reasoned that an anti-competitive motive in seeking

legal relief is not in and of itself enough to make the request

for relief an abuse of the right of petition. Id. at 59. Such

reasoning flows quite naturally from the logic underlying Noerr-

Pennington immunity, which protects the First Amendment rights of

all market actors to seek competitive advantage through the non-

frivolous assertion of legal rights that, if vindicated, would

prove to be economically beneficial.

Thus, in my view, PREI does not necessarily compel the

conclusion that, in a pattern case more akin to California Motor,

each filing in a series must be baseless to make the petitioning

activity a sham. The antitrust violation -- if it exists -- in a

pattern case of that kind inheres in the monopolist's use of the

petitioning process to make the costs of the rival's petitioning

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activity so high that the rival cannot secure the legal relief

that would enable it actually to become a competitor. And, for

that reason, there is no claim in such a case, as there was in

PREI, that the antitrust violation inheres merely in the

monopolist's desire to disadvantage the competitor by actually

winning legal relief. Simply put, while there is no question after

PREI that a monopolist may use its petitioning right to seek to

win, I have my doubts about whether PREI also means that a

monopolist may use that same right to ensure -- by seeking to

deprive a rival of its own petitioning right -- that the monopolist

cannot lose.

Of course, in the abstract, I suppose that a monopolist

could use even a single filing in this concerning manner. And, I

acknowledge that PREI's "objectively baseless" requirement would

bar holding the monopolist liable for that filing, if it is not

frivolous. But, even so, California Motor suggests that, for a

monopolist to be effective in this regard, it will need to file

multiple petitions, as opposed to a single one. Thus, the fact

that PREI imposed an "objectively baseless" requirement in a case

involving a single copyright infringement claim does not suggest

to me that this same requirement necessarily applies to the kind

of seemingly abusive serial filing that I have just described.

Here, however, PRTC does not have the kind of direct

evidence of OneLink's attempt to destroy PRTC's right to petition

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for a license to compete that the California Motor plaintiffs had

in consequence of the public threat that the incumbent trucking

companies had allegedly made. Nor does PRTC identify other

comparable evidence.

Instead, PRTC relies on circumstantial evidence from

which, PRTC alleges, a jury could permissibly infer that OneLink

filed its underlying petitions without regard to merit. PRTC

points to OneLink's poor win-loss record in the underlying

proceedings and the fact that (in PRTC's estimation) the relief

sought was, in any event, unlikely to be of much benefit. But,

PRTC concedes that each filing had some merit, and it is difficult

to deny the value of the legal relief sought where, as is alleged

here, a market incumbent seeks procedural rights to challenge a

putative competitor's application for an operating license and

injunctive relief against that would-be competitor's construction

and funding of rival services.

The only other evidence that PRTC asks us to consider is

that OneLink abandoned its "efforts to intervene and challenge

PRTC's license" once its adversary obtained the license, the

licensing board's observations concerning OneLink's litigiousness,

and the possibility that OneLink financed half of another market

incumbent's lawsuit seeking to enjoin PRTC from developing the

infrastructure to enter their market. But, no circuit has actually

permitted a suit to go forward in which the underlying petitions

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were not baseless and there was no clear and convincing evidence

that an alleged monopolist sought to "use the governmental

process. . . as an anticompetitive weapon." City of Columbia v.

Omni Outdoor Advert., Inc., 499 U.S. 365, 380 (1991). And for

good reason, given the First Amendment interests at stake. Cf.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252-56 (1986)

("[W]here the New York Times 'clear and convincing' evidence

requirement applies, the trial judge's summary judgment inquiry as

to whether a genuine issue exists will be whether the evidence

presented is such that a jury applying that evidentiary standard

could reasonably find for either the plaintiff or the defendant.");

New York Times Co. v. Sullivan, 376 U.S. 254, 285-86 (1964)

(establishing a clear-and-convincing standard of proof for a

public official's libel claim, in light of the defendant's First

Amendment rights).

For these reasons, I am convinced that if we were to let

this suit proceed, we would be tilting the balance too far against

OneLink's right of petition. Accordingly, I join the Court's

opinion, which affirms the District Court's grant of summary

judgment but reserves for future cases a fuller accounting of

whether and when a series of non-baseless petitions might

constitute a sham within the meaning of the Noerr-Pennington

doctrine.

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