regulation or the reverse; but because knowledge of intent may
help the court to interpret facts and to predict consequences.
Board of Trade v. United States, 246 U.S. 231, 238, 38 S.Ct.
242, 243, 62 L.Ed. 683 (1918).
Therefore, construing the railroads' claims as alleging that
the shippers conspired to act in a way in which they would not
have acted had they been conducting themselves as independent
economic actors in a competitive market, they have stated a
claim under the Sherman Act. Notwithstanding the shippers'
arguments to the contrary, an organized system to exchange
transit bills is not a "necessary consequence" of the
railroads' tariff system. If the railroads can prove that the
organized exchange restrained trade and did so unreasonably,
they may succeed on their antitrust claim. If so, the alleged
exchange of information relating to available transit bills may
well have been an unlawful act in furtherance of the
The allegations relating to "circuitous routing" and "local
sale" are at best considerably weaker than those relating to
transit bills. If it is cheaper for a shipper to use a
circuitous routing permitted by the railroads' tariff system
and/or to sell some products locally, the shipper has an
obvious economic incentive to do those things even if acting
alone. It is difficult to see how an agreement by several
competitors to do what each of them would have done
individually can be a "restraint" of trade. Nevertheless, in
the present context we cannot preclude the possibility that the
railroads will be able to show that the result of the
conspiracy is that shippers have altered what would be
considered normal competitive behavior.
Finally, the shippers argue that their conduct before the ICC
is protected from antitrust scrutiny by the doctrine of
Eastern Railroad Presidents' Conference v. Noerr Motor
Freight, Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464
(1961) and United Mine Workers of America v. Pennington,
381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965). However, in
Noerr, the Supreme Court suggested that activity "ostensibly
directed toward influencing governmental activity [that is] a
mere sham" might be subject to the Sherman Act. Noerr, 365
U.S. at 144, 81 S.Ct. at 533. In California Motor Transport
Co. v. Trucking Unlimited, 404 U.S. 508, 513, 92 S.Ct. 609,
613, 30 L.Ed.2d 642 (1972), the Court stated that
"[m]isrepresentations, condoned in the political arena, are not
immunized when used in the adjudicatory process."*fn8 See
also, e.g., Federal Prescription Service, Inc. v. American
Pharmaceutical Association, 663 F.2d 253, 262-63 (D.C.Cir.
1981) (proof that defendants combined to subvert integrity of
governmental process or effectively barred opponents' access to
that process would be sufficient to state antitrust claim),
cert. denied, 455 U.S. 928, 102 S.Ct. 1293, 71 L.Ed.2d 472
(1982); Israel v. Baxter Laboratories, Inc., 466 F.2d 272,
275-80 (D.C.Cir. 1972) (allegation that purpose of defendants'
joint efforts was to preclude fair consideration by Food and
Drug Administration of plaintiffs' drug falls within "sham"
exception to Noerr-Pennington). The railroads' allegation
that the shippers made material omissions from their ICC
filings is sufficient to survive the shippers' motion to
To summarize, plaintiffs' motions to dismiss defendants'
counterclaims (motions 4 and 20 on the parties' joint list) are
denied. Plaintiffs are to answer the counterclaims within 20
days of entry of this order.