693 F.2d 84 (9th Cir. 1982), 81-4399, In re Airport Car Rental Antitrust Litigation

Docket Nº:81-4399.
Citation:693 F.2d 84
Party Name:In re AIRPORT CAR RENTAL ANTITRUST LITIGATION. BUDGET RENT-A-CAR OF WASHINGTON-OREGON, INC., Plaintiff-Appellant, v. The HERTZ CORP. and National Car Rental System, Inc., Defendants-Appellees.
Case Date:November 16, 1982
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 84

693 F.2d 84 (9th Cir. 1982)

In re AIRPORT CAR RENTAL ANTITRUST LITIGATION.

BUDGET RENT-A-CAR OF WASHINGTON-OREGON, INC., Plaintiff-Appellant,

v.

The HERTZ CORP. and National Car Rental System, Inc.,

Defendants-Appellees.

No. 81-4399.

United States Court of Appeals, Ninth Circuit

November 16, 1982

Argued and Submitted July 16, 1982.

Page 85

F. Douglas Ruud, Diamond, Sylvester, Seattle, Wash., for plaintiff-appellant.

Jerome Shestack, Philadelphia, Pa., Daniel R. Shulman, Minneapolis, Minn., argued, Schnader, Harrison, Segal & Lewis, Philadelphia, Pa., James Walsh, Pillsbury, Madison & Sutro, San Francisco, Cal., Gray, Plant, Mooty, Mooty & Bennett, Minneapolis, Minn., Robert D. Raven, Morrison & Foerster, San Francisco, Cal., on brief, for defendants-appellees.

Francis O. Scarpulla, San Francisco, Cal., Gerald Maltz, Tucson, Ariz., Joseph M. Alioto, San Francisco, Cal., for amicus curiae.

Appeal from the United States District Court for the Northern District of California.

Before CHOY, SNEED and FARRIS, Circuit Judges.

CHOY, Circuit Judge:

This appeal requires us to decide whether the so-called Noerr-Pennington exemption from the antitrust laws protects concerted efforts to lobby public officials who operate state-owned airports. We, as did the district court, conclude that it does.

I. Facts

A number of relatively small car-rental companies sued The Hertz Corp., Avis Rent A Car Systems, Inc., and National Car Rental Systems, Inc., on the ground that these industry giants had engaged in a nationwide conspiracy to monopolize the lucrative on-airport car-rental market. The lawsuits were consolidated into a single multidistrict litigation. This appeal concerns only the entry of summary judgment against one plaintiff who alleges misconduct at three airports located in the Pacific Northwest. See In re Airport Car Rental Antitrust Litigation, 521 F.Supp. 568 (N.D.Cal.1981).

Budget Rent-A-Car of Washington-Oregon, Inc., claims that Hertz and National lobbied officials at the Seattle-Tacoma, Portland and Spokane International Airports to lease space only to car-rental companies that satisfied a number of very restrictive requirements. The major one compelled the company to pay the airports a rental fee equal to that paid by Hertz, Avis and National. Other requirements included a nationwide credit-card and reservations system, additional car-return stations away from the airport, and a specified number of years experience at a specified number of airports. Hertz and National thus hoped to exclude newcomers from the airports. 1

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II. Discussion

A. The Noerr-Pennington Doctrine

Through a series of decisions, 2 the Supreme Court has exempted from the antitrust laws certain concerted efforts to influence government officials regardless of anticompetitive purpose. The twin pillars upholding the Noerr-Pennington doctrine are:

(1) the vital role played by free-flowing communication in a representative democracy, and

(2) the first amendment right to petition the government for the redress of grievances.

City of Lafayette v. Louisiana Power & Light Co., 435 U.S. 389, 399, 98 S.Ct. 1123, 1129, 55 L.Ed.2d 364 (1978); California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 510, 92 S.Ct. 609, 611, 30 L.Ed.2d 642 (1972). In order to determine whether Noerr-Pennington protects a particular activity, we must evaluate whether exempting it would further these two interests sufficiently to justify overriding the antitrust laws. See, e.g., Ernest W. Hahn, Inc. v. Codding, 615 F.2d 830, 842-43 (9th Cir.1977). 3

In the case before us...

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