486 U.S. 492 (1988), 87-157, Allied Tube & Conduit Corp. v. Indian Head, Inc.

Docket Nº:No. 87-157.
Citation:486 U.S. 492, 108 S.Ct. 1931, 100 L.Ed.2d 497, 56 U.S.L.W. 4539
Case Date:June 13, 1988
Court:United States Supreme Court

Page 492

486 U.S. 492 (1988)

108 S.Ct. 1931, 100 L.Ed.2d 497, 56 U.S.L.W. 4539




No. 87-157.

United States Supreme Court.

June 13, 1988

Argued Feb. 24, 1988.

[108 S.Ct. 1933] Syllabus[*]


The National Fire Protection Association--a private organization that includes members representing industry, labor, academia, insurers, organized medicine, firefighters, and government--sets and publishes product standards and codes related to fire protection. Its National Electrical Code (Code), which establishes requirements for the design and installation of electrical wiring systems, is routinely adopted into law by a substantial number of state and local governments, and is widely adopted as setting acceptable standards by private product-certification laboratories, insurance underwriters, and electrical inspectors, contractors, and distributors. Throughout the relevant period, the Code permitted the use of electrical conduit made of steel. Respondent, a manufacturer of plastic conduit, initiated a proposal before the Association to extend Code approval to plastic conduit as well. The proposal was approved by one of the Association's professional panels, and thus could be adopted into the Code by a simple majority of the members attending the Association's 1980 annual meeting. Before the meeting was held, petitioner, the Nation's largest producer of steel conduit, members of the steel industry, other steel conduit manufacturers, and independent sales agents collectively agreed to exclude respondent's product from the 1981 Code by packing the annual meeting with new Association members whose only function was to vote against respondent's proposal. After the proposal was defeated at the meeting and an appeal to the Association's Board of Directors was denied, respondent brought suit in Federal District Court, alleging that petitioner and others had unreasonably restrained trade in the electrical conduit market in violation of § 1 of the Sherman Act. The jury found petitioner liable, but the court granted a judgment n.o.v. for petitioner, reasoning that it was entitled to antitrust immunity under 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. The Court of Appeals reversed.

Held: Noerr antitrust immunity does not apply to petitioner. Pp. 1936-1941.

(a) The scope of Noerr protection depends on the source, context, and nature of the anticompetitive restraint at issue. Where a restraint is the result of valid governmental action, as opposed to private action,

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those urging the governmental action enjoy absolute immunity from antitrust liability for the anticompetitive restraint. In this case, the relevant context is the standard-setting process of a private association without official authority that includes members having horizontal and vertical business relations and economic incentives to restrain competition. Such an association cannot be treated as a "quasi-legislative" body simply because legislatures routinely adopt its Code, and thus petitioner does not enjoy the immunity afforded those who merely urge the government to restrain trade. Pp. 1936-1938.

(b) Nor does Noerr immunity apply to petitioner on the theory that the exclusion of plastic conduit from the Code, and the effect that exclusion had of its own force in the marketplace, were incidental to a valid effort to influence governmental action. Although, because a large number of governments routinely adopt the Code into law, efforts to influence the Association's standard-setting process are arguably the most effective means of influencing legislation regulating electrical conduit, and although Noerr immunity is not limited to [108 S.Ct. 1934] "direct" petitioning of government officials, the Noerr doctrine does not immunize every concerted activity that is genuinely intended to influence governmental action. There is no merit to the argument that, regardless of the Association's nonlegislative status, petitioner's efforts to influence the Association must be given the same wide berth accorded legislative lobbying or efforts to influence legislative action in the political arena. Pp. 1938-1940.

(c) Unlike the publicity campaign to influence legislation in Noerr, petitioner's activity did not take place in the open political arena, where partisanship is the hallmark of decisionmaking, but took place within the confines of a private standard-setting process. The validity of petitioner's efforts to influence the Code is not established, without more, by petitioner's literal compliance with the Association's rules, for the hope of the Code's procompetitive benefits depends upon the existence of safeguards sufficient to prevent the standard-setting process from being biased by members with economic interests in restraining competition. An association cannot validate the anticompetitive activities of its members simply by adopting rules that fail to provide such safeguards. At least where, as here, an economically interested party exercises decisionmaking authority in formulating a product standard for a private association that comprises market participants, that party enjoys no Noerr immunity from any antitrust liability flowing from the effect the standard has of its own force in the marketplace. Pp. 1949-1941.

817 F.2d 938 (CA2 1987), affirmed.

BRENNAN, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and MARSHALL, BLACKMUN, STEVENS, SCALIA, and KENNEDY, JJ.,

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joined. WHITE, J., filed a dissenting opinion, in which O'CONNOR, J., joined, post, p. ----.


Marvin E. Frankel argued the cause for petitioner. With him on the briefs were Robert M. Heller, Arthur B. Kramer, and Debora K. Grobman.

Fredric W. Yerman argued the cause for respondent. With him on the brief wereMichael Malina, Randolph S. Sherman, and Richard A. De Sevo.*

* Briefs of amici curiae urging reversal were filed for the State of Illinois by Neil F. Hartigan, Attorney General, and Robert E. Davy, Jr., Assistant Attorney General; and for the Western Fire Chiefs Association et al. byWilliam J. Meeske and Alexander D. Thomson.

Briefs of amici curiae urging affirmance were filed for the United States et al. by Solicitor General Fried, Assistant Attorney General Rule, Deputy Solicitor General Cohen, Deputy Assistant Attorney General Starling, Paul J. Larkin, Jr., Robert B. Nicholson, John J. Powers III, Marion L. Jetton, Robert D. Paul, and Ernest J. Isenstadt; and for the State of Alaska et al. by Robert Abrams, Attorney General of New York, O. Peter Sherwood, Solicitor General, andLloyd E. Constantine, Susan Beth Farmer, Elizabeth M. O'Neill, and George W. Sampson, Assistant Attorneys General, Grace Berg Schaible, Attorney General of Alaska, Richard D. Monkmon, Assistant Attorney General, Robert K. Corbin, Attorney General of Arizona, John Steven Clark, Attorney General of Arkansas,Jeffrey A. Bell, Deputy Attorney General, John Van de Kamp, Attorney General of California, Andrea Ordin, Chief Assistant Attorney General, Thomas P. Dove, Deputy Attorney General, Duane Woodard, Attorney General of Colorado, Thomas P. McMahon, First Assistant Attorney General, Joseph I. Lieberman, Attorney General of Connecticut, Robert M. Langer, Assistant Attorney General, Warren Price III, Attorney General of Hawaii, Robert A. Marks, Supervising Deputy Attorney General, Thomas J. Miller, Attorney General of Iowa, John Perkins, Deputy Attorney General, James E. Tierney, Attorney General of Maine, Stephen L. Wessler, Assistant Attorney General, J. Joseph Curran, Jr., Attorney General of Maryland, Michael F. Brockmeyer, Assistant Attorney General, Frank J. Kelley, Attorney General of Michigan, Louis J. Caruso, Solicitor General,Robert C. Ard, Jr., Assistant Attorney General, Hubert H. Humphrey III, Attorney General of Minnesota, Cary Edwards, Attorney General of New Jersey,Laurel A. Price, Deputy Attorney General, Lacy H. Thornburg, Attorney General of North Carolina, Richard H. Carlton, Assistant Attorney General, Anthony J. Celebrezze, Jr., Attorney General of Ohio, Dave Frohnmayer, Attorney General of Oregon, LeRoy S. Zimmerman, Attorney General of Pennsylvania, Eugene F. Wayne, Chief Deputy Attorney General, James E. O'Neil, Attorney General of Rhode Island, Roger A. Tellinghuisen, Attorney General of South Dakota, Jim Mattox, Attorney General of Texas, Mary F. Keller, Executive Assistant Attorney General, John J. White, Assistant Attorney General, David L. Wilkinson, Attorney General of Utah, Kenneth O. Eikenberry, Attorney General of Washington, John R. Ellis, Deputy Attorney General, Tina Kondo, Assistant Attorney General, Charles G. Brown, Attorney General of West Virginia, Mark D. Kindt, Deputy Attorney General, Donald J. Hanaway, Attorney General of Wisconsin, and Kevin J. O'Connor, Assistant Attorney General.

Marvin E. Frankel, New York City, for petitioner.

Fredric W. Yerman, New York City, for respondent.


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Justice BRENNAN delivered the opinion of the Court.

Petitioner contends that its efforts to affect the product standard-setting process of a private association are immune from antitrust liability under the Noerr doctrine primarily because the association's standards are widely adopted into law by state and local governments. Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961) (Noerr). The United States Court of Appeals for the Second Circuit held that Noerr immunity did not apply. We affirm.


The National Fire Protection Association (Association) is a private, voluntary...

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