Astoria Entertainment, Inc. v. DeBartolo

• Citation: 12 So.3d 956
• Decision Date: 22 May 2009
• Docket Number: No. 2008-C-1690.,2008-C-1690.
• Parties: ASTORIA ENTERTAINMENT, INC. v. Edward J. DeBARTOLO, Jr., DeBartolo Entertainment Louisiana Gaming, Inc., Hollywood Casino Corporation, Robert Guidry, Treasure Chest Casino, L.L.C., et al.
• Court: Supreme Court of Louisiana

12 So.3d 956

ASTORIA ENTERTAINMENT, INC. v. Edward J. DeBARTOLO, Jr., DeBartolo Entertainment Louisiana Gaming, Inc., Hollywood Casino Corporation, Robert Guidry, Treasure Chest Casino, L.L.C., et al.

No. 2008-C-1690.

Supreme Court of Louisiana.

May 22, 2009.

Rehearing Denied June 26, 2009.

Henry L. Klein, New Orleans, for applicant.

Montgomery, Barnett, Brown, Read, Hammond & Mintz, Stephen Paul Schott, New Orleans, Capitelli & Wicker, Ralph Capitelli, New Orleans, The Law Offices of Arthur A. Lemann III & Associate, Arthur A. Lemann, III, Arthur Anthony Lemann, IV, New Orleans, Habans & Carriere, Robert Nagle Habans, Jr., Slidell, King, Krebs & Jurgens, Frederick William Bradley, New Orleans, Neal & Harwell, James G. Thomas, Aubrey B. Harwell, Jr., for respondent.

JOHNSON, Justice.

We granted this writ application to determine whether the court of appeal correctly affirmed the trial court's grant of the defendants' Motions for Summary Judgment, finding that the defendants were immune from any liability by application of the Noerr-Pennington doctrine. Because we find that Noerr-Pennington does not apply to grant civil immunity for the defendants' illegal actions, we reverse the decision of the court of appeal.

FACTS AND PROCEDURAL HISTORY

On December 1, 1998, Plaintiff, Astoria Entertainment, Inc. ("Astoria"), filed suit against defendants Edward DeBartolo, Jr.¹ ("DeBartolo") and Robert Guidry ("Guidry"), as well as numerous other defendants,² essentially alleging that it was not awarded a license to operate a riverboat casino due to the defendants' corrupt practices which permeated the riverboat gaming licensing process in Louisiana from 1991 to 1998. Astoria initially filed suit in federal court on November 12, 1998. The original Complaint was premised solely on the defendants' alleged violations of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C.1961 et seq., and sought civil damages under that statute. The suit named numerous defendants, including DeBartolo and Guidry. The federal case was stayed on April 11, 1999, pending the prosecution and conclusion of the criminal proceeding in the Middle District of Louisiana captioned United States v. Edwin Edwards, et al., Cr. No. 98-165B. The stay was eventually lifted on February 23, 2001, after the criminal convictions were returned and sentences imposed. On March 6, 2001, Astoria filed an amended complaint in federal court, adding allegations of Sherman and Clayton Antitrust Act violations, as well as several causes of action under Louisiana state law. As in this case, the gist of Astoria's complaint was that it would have received a license to operate a riverboat casino in the absence of corruption. Defendants filed a Motion to Dismiss, which was granted by the federal court. The court found that Astoria's antitrust action was prescribed, and additionally found that the Noerr-Pennington doctrine applied to shield the defendants from federal antitrust liability. The court dismissed Astoria's federal Sherman antitrust and RICO claims with prejudice. Holding that the dismissal of Astoria's federal antitrust claims deprived the federal court of jurisdiction, the court declined to rule on Astoria's state claims, and dismissed them without prejudice, thereby preserving Astoria's right to pursue them in state court. Astoria Entm't, Inc. v. Edwards, 159 F.Supp.2d 303, 320-321 (E.D.La.2001).

In 1991, the Louisiana Riverboat Economic Development and Gaming Control Act ("the Act") was enacted, which authorized the licensing and operation of fifteen riverboat casinos.³ The Act created two separate bodies within the Department of Public Safety and Corrections and vested each with separate duties and responsibilities in furtherance of the Act's purposes.⁴ See: State Through Dept. of Public Safety and Corrections v. Louisiana Riverboat Gaming Commission and Horseshoe Entertainment, 94-1872 (La.5/22/95), 655 So.2d 292. The Gaming Enforcement Division was vested with regulatory and enforcement powers, and the Riverboat Gaming Commission ("the Commission") was a rule and policy making body appointed by the Governor and confirmed by the Louisiana Senate. Id. at 296. Under its rulemaking powers, the Commission required any prospective riverboat operator to apply to the Commission for a Certificate of Preliminary Approval ("CPA"). See former La. Admin. Code 42:XIII.303.⁵

In short, at issue in this litigation are two riverboat licenses—one that was awarded to Guidry in 1993, and one that was awarded to DeBartolo in 1997. According to Astoria's Petitions, it originally pursued a license to operate a riverboat casino in Kenner, but abandoned that plan when it learned that Guidry "had been guaranteed" a Kenner license because of his "close relationship" with former Governor Edwin Edwards. Astoria contends that it then sought to pursue a Gretna license, and filed an application for a CPA to operate a riverboat in Gretna. Astoria alleges that despite promises of support from some Commission members, it failed to obtain a CPA as a result of corruption. The 1997 license ("15th license") was eventually awarded to DeBartolo after a license previously awarded to another company was abandoned. Astoria alleges that DeBartolo paid Edwards $400,000.00 to prevent problems with his license application. Astoria asserts that DeBartolo's actions made it impossible for Astoria to have a fair and impartial consideration of its application for the 15th license, but Astoria makes no specific allegation that it actually applied for that particular license.

The crux of Astoria's argument is that DeBartolo and Guidry corrupted the licensing process by making illegal payments to former Governor Edwin Edwards in order to obtain Edwards' assistance in obtaining casino licenses for their respective companies;⁶ and, but for their corrupt actions, Astoria would have received a license.⁷

The defendants filed various exceptions, including exceptions of no cause of action, which were denied by the trial court on February 13, 2004. On September 7, 2004, the court of appeal granted the defendants' writ applications, reversing the trial court's denial of their exceptions of no cause of action. The court of appeal stated:

[T]he Noerr-Pennington doctrine is applicable to all of the claims set forth by Astoria against the defendant-relators in this case, specifically the claims for tortious interference (with economic and/or prospective business advantage), the claims for violations of the Louisiana Unfair Trade Practices and Consumer Protection Law and any other such unfair trade practices claims (such as under California law), the claims for conspiracy, and the claims for unjust enrichment. Therefore, we reverse the judgment of the trial court....

Astoria Entertainment, Inc. v. Edward J. DeBartolo, Jr., et al, 2004-C-0415 c/w 2004-C-0417, 2004-C-0430, 2004-C-0431 (La.App. 4th Cir.9/7/04), unpub.

Astoria then filed a writ application in this Court, which we granted with an order reversing the decision of the court of appeal. Specifically, this Court stated:

The Noerr-Pennington doctrine provides an affirmative defense. Bayou Fleet v. Alexander, 234 F.3d 852 (5th Cir.2000), and Acoustic Systems, Inc. v. Wenger Corp., 207 F.3d 287 (5th Cir. 2000). Affirmative defenses must be raised in the answer. La.Code Civ. P. art. 1003 and art. 1005. The court of appeal was premature in reaching this issue in the context of an exception of no cause of action. Accordingly, the judgment of the court of appeal is vacated and the judgment of the district court denying the exception of no cause of action is reinstated.

Astoria Entertainment, Inc. v. Debartolo, Jr., et al, 2004-2472 (La.1/7/05), 891 So.2d 687.

Following remand to the trial court, DeBartolo filed an answer asserting defenses, including Noerr-Pennington. Guidry amended his answer to assert a Noerr-Pennington defense. Defendants subsequently moved for summary judgment asserting that they were entitled to immunity pursuant to the Noerr-Pennington doctrine.⁸ The trial court granted the defendants' motions for summary judgment, finding that it was bound by the court of appeal's previous ruling on the applicability of Noerr-Pennington. Astoria appealed. While the court of appeal agreed with Astoria that its previous vacated decision was not law of the case and had no force or effect, the court of appeal again found, as a matter of law, that the Noerr-Pennington doctrine was dispositive. Astoria filed the instant writ application in this Court, which we granted. Astoria Entertainment, Inc. v. Debartolo, et al., 2008-1690 (La.10/31/08), 993 So.2d 221.

DISCUSSION

Origins of the Noerr-Pennington Doctrine

The Noerr-Pennington doctrine is derived from two United States Supreme Court decisions: Eastern R.R. 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 v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965). This immunity doctrine essentially provides that private parties who petition the government for governmental action favorable to them are not in violation of the antitrust laws, even though their petitions are motivated by anticompetitive intent. 5 Ronald D. Rotunda & John E. Nowak, Treatise on Constitutional Law: Substance and Procedure, § 20.54(e) (4th ed.2008). The Court derived its decision in Noerr from the premise set forth in Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315 (1943), that the States have freedom to engage in anticompetitive regulation. Parker provides immunity to governments and government actors from anti-trust claims, finding that the Sherman Act was intended to restrain only private action, but did not apply to anticompetitive restraints imposed by the State "as an act of government." Parker, 317 U.S. at 352, 63 S.Ct. 307.⁹ However, Parker did not immunize the private parties who urge government or government...