Protection for asking government to act, even with anticompetitive intent.
Esshaki Legal Media TeamCurrent as of February 2025
The right to petition protects efforts to influence government action from
liability, most prominently under the antitrust laws but extending to other
claims.
Scope. Lobbying legislatures and agencies, litigation and threats of
litigation, and participation in administrative proceedings — including where
the purpose is to disadvantage a competitor.
Sham exception. Protection is lost where the petitioning is a sham: the
lawsuit or petition is objectively baseless, such that no reasonable litigant
could expect success, and it is subjectively motivated by an intent to interfere
directly with a competitor’s business through the process itself rather than
through the outcome.
Series of claims. Where a party files many proceedings, some courts assess
whether the series was brought without regard to merit rather than testing each
one.
Beyond antitrust. Courts have applied the doctrine to tortious interference,
unfair competition and other claims arising from petitioning conduct.
Fraud on the tribunal. Misrepresentations to an agency or court may forfeit
protection.
Where it matters commercially. Objections to a competitor’s permit
application, participation in a rezoning hearing, standards-setting activity,
and litigation between competitors. A party advised that opposing a rival’s
approval is unlawful interference is usually being advised wrongly.