motivation of the defendant in seeking to exclude foreign pipe.
However, the Noerr-Pennington doctrine specifically eschews the
question of motivation or anti-competitive purpose. If good faith
lobbying efforts were made, motivation and purpose are
irrelevant. Insofar as Johns-Manville discusses and follows
Noerr-Pennington, that case supports WP's position. Insofar as
the result reached by that court does not cite or follow
Noerr-Pennington, this Court declines to follow the result
Allied also cites Feminist Women's Health Center v. Mohammad,
586 F.2d 530 (5th Cir. 1978), cert. denied, 444 U.S. 924, 100
S.Ct. 262, 62 L.Ed.2d 180 (1979), for the proposition that
lobbying a non-governmental organization is not protected by
Noerr-Pennington. In Feminist Women's Health Center, the
plaintiff alleged that the defendant doctors conspired to boycott
the plaintiff's abortion clinic, and to fix the prices for
abortions in the Tallahassee area. The district court granted the
defendants' motion for summary judgment on the grounds that
communications between the defendants and the Capitol Medical
Society*fn4 were protected by Noerr-Pennington.
The Fifth Circuit reversed, holding that the district court was
in error that the staff members at various hospitals and the
Capitol Medical Society were "integral parts of the state's
apparatus for regulating the practice of medicine." 586 F.2d at
543. The court held that the internal review responsibilities of
hospital staffs and medical societies, which in some cases would
require recommendations that disciplinary action be taken by the
Florida Board of Medical Examiners ("BOME"), did not make medical
review organizations public regulatory bodies. The Florida
statute in issue gave the BOME discretion to follow or to choose
not to follow the recommendations of a review board, and the
court found BOME's discretionary latitude to be key. The court
expressly declined to address the question of whether the
Noerr-Pennington doctrine would apply if the state statute
mandated that the recommendations of medical review groups had to
be followed by the BOME. 586 F.2d at 545 n. 13. Since that is
precisely the question presented here — where state and local
statutes explicitly incorporate the standards adopted by NFPA and
UL — Feminist Women's Health Center sheds no light on the issue.
In sum, the Court finds that because of municipal and state
authorities' reliance on NFPA and UL, the policy of the
Noerr-Pennington doctrine is fulfilled by granting WP its
protection in this case. WP presented its proposal to NFPA and UL
as stand-ins for the municipal and state bodies which regulated
these matters. And as in Rush-Hampton, approval by the NFPA and
UL was "tantamount to approval by numerous government agencies,"
419 F. Supp. at 22. In order to communicate its position to the
powers that be in an effective way, WP had no choice but to
approach NFPA and UL.
b. The Sham Exception
However, Allied argues that even if the Noerr-Pennington
doctrine can be extended to include WP's activities with regard
to NFPA and UL, WP's "lobbying" was no more than a sham meant to
delay the adoption of Allied's proposal by these organizations.
The so-called "sham exception" to the Noerr-Pennington doctrine,
initially enunciated in Noerr but first applied in California
Motor Transport, has given rise to much case law interpretation
and scholarly comment as well. See, e.g., cases and articles
cited in MCI Communications Corp. v. American Telephone &
Telegraph Co., supra, 708 F.2d at 1154-55.
The first esoteric point of debate is whether the scope of the
sham exception is different depending upon what kind of
governmental entity is the subject of lobbying
attempts. California Motor Transport seems to draw a distinction
between lobbying the legislative or executive branches on the one
hand and lobbying an adjudicative branch on the other. See
404 U.S. 508, at 513, 92 S.Ct. 609, at 613, 30 L.Ed.2d 642
(misrepresentations condoned in the political arena are not
immunized when made in the adjudicatory process).
While some courts seem to have tried to get away from
"labelling" the governmental body involved, see, e.g., Federal
Prescription Service, Inc. v. American Pharmaceutical
Association, supra, 663 F.2d 253, 266, and see n. 15
(D.C.Cir. 1981), other courts, including our own Seventh Circuit
in Metro Cable Co. v. CATV of Rockford, Inc., 516 F.2d 220,
225-28 (7th Cir. 1975) (certain unethical conduct which would not
result in antitrust illegality in legislative or other
non-adjudicatory setting may not be protected under
Noerr-Pennington if it takes place in an adjudicatory setting),
have maintained that such distinctions are important.
Therefore, the Court must determine whether NFPA and UL were
executive, legislative, or adjudicative-like bodies. Clearly,
NFPA and UL did not act precisely in any of these capacities.
They were neither elected nor appointed to their stations. But
again, the Rush-Hampton case provides excellent guidance. In
Rush-Hampton, the court found that the building code
organizations performed functions that were both legislative
(drafting model codes) and adjudicative (approving specific
products) in nature, and in the end the court decided the
building code organizations were quasi-administrative bodies. 419
F. Supp. at 24. Following the same analysis, this Court finds that
the NFPA acted in a quasi-legislative capacity when it drafted a
model code (the NEC). UL acted in two different capacities:
first, in a quasi-legislative capacity when it adopted standards
of general applicability; and second, in a quasi-adjudicative
capacity when it tested a particular manufacturer's products and
agreed to "list" that particular product if it passed UL's tests.
The fight between Allied and WP was over UL's adoption of
standards of general applicability. Therefore, the lobbying of UL
was in the context of UL's quasi-legislative activities.
In sum, the Court finds that the bodies lobbied by WP here
acted in quasi-legislative capacities.*fn5 Therefore if there is a
higher standard under the sham exception for the lobbying of an
adjudicatory body, cf. California Motor Transport with Metro
Cable, supra, that higher standard does not apply in this case.
In support of its sham exception argument, Allied alleges that
WP made misrepresentations to UL as to the safety of Allied's
proposed product (WP claimed that the walls of Allied's proposed
IMC were too thin). First, the Court notes that the undisputed
documentary evidence shows that UL did not adopt Allied's
proposal without change, but found that the walls of IMC had to
be slightly thicker. WP's complaints were not ineffective.
Second, while deception and misrepresentation may be deemed
unethical, nevertheless they are not the kinds of activity which
come within the sham exception to the Noerr-Pennington doctrine.
See Metro Cable Co., supra, 516 F.2d at 227-28; see also Mark
Aero, Inc. v. Trans World Airlines, Inc., 580 F.2d 288, 296-97
(8th Cir. 1978).
The true meaning of the sham exception is that a defendant's
lobbying activities may not be designed to deprive the opponent
of access to the decision-making process. This is entirely
consistent with the First Amendment context of Noerr-Pennington,
which keeps alive the possibility of presenting various positions
to governmental or governmental-like bodies for their
consideration. However, if through a party's activities an
opponent is denied access
to the decision-making bodies, the process may break down.
Actions aimed not "at securing favorable governmental action but
at discouraging competitors from seeking governmental action,"
Metro Cable Co., supra, 516 F.2d at 232, come within the sham
In California Motor Transport, the activity which came within
the sham exception was the defendants' opposition to the
plaintiffs' every application before the California Public
Utilities Commission and the Interstate Commerce Commission,
regardless of the merits. The alleged result "was that the
machinery of the agencies and courts was effectively closed" to
the plaintiffs. 404 U.S. at 511, 92 S.Ct. at 612.
The Seventh Circuit in MCI Communications Corp. v. American
Telephone & Telegraph, supra, recently held that AT & T's filing
of the same tariff with 49 individual state commissions, at a
time when AT & T knew that the state commissions lacked
jurisdiction over long distance interconnection matters, could
bring the sham exception into play. The court noted the various
ways in which MCI would be tied up by litigation before 49
separate regulatory agencies. Regardless of the results before
the individual state regulatory agencies, MCI would be bled by
the process of litigation itself. This is the kind of sham
activity unprotected by Noerr-Pennington. Cf. Bill Johnson's
Restaurants, Inc. v. NLRB, ___ U.S. ___, ___, 103 S.Ct. 2161,
2169, 76 L.Ed.2d 277, 288 (1983) (California Motor Transport is
a right of access case); Havoco of America, Ltd. v. Hollobow,
702 F.2d 643, 650 (7th Cir. 1983) (First Amendment guarantees the
right to attempt to enlist the government on the petitioner's
side of the dispute; sham exception cannot be read so broadly as
to chill the constitutional right).
Allied claims that it was denied access to UL's services. This
assertion is totally without support in the record. Allied
presented its proposal to UL, and was present at the key meeting
of June 21, 1974, along with representatives of WP. Both argued
vociferously that their proposals should be adopted. Four months
later Allied won the battle, though its proposed product
specifications had been slightly changed by UL. The fact that WP
succeeded in convincing UL not to adopt Allied's proposed
specifications in toto shows that WP's efforts to convince UL
were genuine. The sham exception is inapplicable.
The Supreme Court's first and unanimous statement on the matter
seems to describe this case as well:
[T]he true nature of [this] case [is] a "no-holds
barred fight" between two industries both of which
are seeking control of a profitable source of income.
Inherent in such fights, which are commonplace in the
halls of legislative bodies, is the possibility, and
in many instances even the probability, that one
group or the other will get hurt by the arguments
that are made. In this particular instance, each
group appears to have utilized all the political
powers it could muster in an attempt to bring about
the passage of laws that would help it or injure the
other. But the contest itself appears to have been
conducted along lines normally accepted in our
political system, except to the extent that each
group has deliberately deceived the public and public
officials. And that deception, reprehensible as it
is, can be of no consequence so far as the Sherman
Act is concerned. That Act was not violated. . . .
Noerr, supra, 365 U.S. 127, 144-45, 81 S.Ct. 523, 533, 5 L.Ed.2d
464. WP's motion for summary judgment on Count I is granted.
IV. COUNTS II AND III
Counts II and III of Allied's counterclaim allege that WP's
activities also violated the Illinois Deceptive Practices Act,
Ill.Rev.Stat. ch. 121 1/2, § 312, and the Illinois common law.
Allied asks this Court to assert pendent jurisdiction over these
state law claims. However, since the substantial federal
antitrust claim is being dismissed at this time, the Court in its
discretion dismisses Allied's state law
claims for lack of subject matter jurisdiction. United Mine
Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16
L.Ed.2d 218 (1966).
The Court recognizes that this lawsuit is quite old. The Court
also is aware that much of the evidence which Allied would
present in support of its federal antitrust claim would be
presented in connection with its state law claims in a state
forum. The parties have represented to the Court that this action
would be tried before a jury in a trial which would last between
three and six weeks. The Court has a trial calendar crowded with
claims over which the Court has subject matter jurisdiction. In
light of this fact, and the fact that the claim over which the
Court originally had jurisdiction is now being dismissed, the
Court will dismiss the pendent state claims for lack of subject
IT IS THEREFORE ORDERED that
(1) Plaintiff, counter-defendant Wheeling-Pittsburgh's motion
for summary judgment on Count I of the counterclaim brought by
Allied is granted.
(2) Counts II and III of Allied's counterclaim are dismissed
for lack of subject matter jurisdiction.
(3) This action is dismissed.