A Fisherman's Best v. Recreational Fishing All.

Decision Date31 October 2002
Docket NumberNo. 99-2186.,99-2186.
Citation310 F.3d 183
PartiesA FISHERMAN'S BEST, INCORPORATED; Lowcountry Lobsters, Limited; AFB of Charleston, Incorporated; F/V Triple Threat; F/V Rebecca Page; F/V Joan Marie; F/V Proud Mary Ellen, Plaintiffs-Appellants, v. RECREATIONAL FISHING ALLIANCE, Defendant-Appellee, v. William W. Aldret; Louis E. Costa, II, MD; W. Eddie Gordon; James F. Hightower; Rutledge Leland; Dan Long; Terrell M. Rhye; L.J. Wallace; Charleston Harbor Partners, LLC; Gulf Stream Capital Associates, LLC; Coen Company; Richard Coen, Defendants.
CourtU.S. Court of Appeals — Fourth Circuit

ARGUED: William Atkins Scott, Pedersen & Scott, P.C., Charleston, South Carolina, for Appellants. Peter G. Nistad Hood Law Firm, L.L.C., Charleston, South Carolina, for appellee. ON BRIEF: Robert H. Hood, Hood Law Firm, L.L.C., Charleston, South Carolina, for Appellee.

Before MOTZ and KING, Circuit Judges, and JOHN C. GODBOLD, Senior Circuit Judge of the United States Court of Appeals for the Eleventh Circuit, sitting by designation.

Affirmed by published opinion. Senior Judge GODBOLD wrote the opinion, in which Judge MOTZ and Judge KING joined.

OPINION

GODBOLD, Senior Circuit Judge.

This is a companion case to City of Charleston, South Carolina, a municipal corporation v. A Fisherman's Best, Incorporated; AFB of Charleston, Incorporated; Ivan Miller; and the fishing vessel Tri Liner, 310 F.3d 155 (4th Cir.2002) pending in this court. The two cases are decided concurrently.

This case arose from sharp differences in the City of Charleston, South Carolina concerning commercial longline fishing and access to the City's new Maritime Center by vessels engaged in that method of fishing.1 The City leased the Center to the Charleston County Park and Recreational Commission (PRC) for it to manage. In April 1997 PRC circulated a request for proposals from entities that might wish to operate the new Maritime Center, which had been built by the City to serve commercial fishing vessels. PRC selected the AFB group consisting of A Fisherman's Best, Incorporated; AFB of Charleston, Incorporated; and Low Country Lobsters, Limited. PRC issued a letter of intent to award a contract to AFB. AFB proposed to serve vessels engaged in longline fishing, along with other vessels. Longlining is bitterly opposed by recreational and sportsfishermen and some environmental groups. A public outcry arose against selection of AFB.

Recreational Fishing Alliance (RFA) is a national non-profit organization whose stated purpose is rebuilding and preserving fisheries in the United States. It seeks to politically organize saltwater anglers and to safeguard their rights, protect jobs in the marine boat and tackle industry, and ensure the long-term sustainability of our nation's saltwater fisheries. It is aligned in principle to sports and recreational fishing and generally opposed to commercial fishing, and it seeks to end longline fishing as an acceptable method of commercial fishing.

The CHP group is composed of persons who wanted their group selected as operator of the Maritime Center, but their response to the request for proposals was rejected as untimely. There is evidence that they requested RFA to ask the mayor to accept their proposal. A mass meeting of sportsfishermen opposing use of the center by longliners took place in Charleston. RFA sent representatives to Charleston and became involved in the public controversy for two or more months. It wrote letters, contacted local officials and raised public consciousness. At a public forum held by PRC the president of RFA denounced longline fishing. PRC issued a letter of intent announcing that AFB had been selected as operator for the Maritime Center. Apparently there were discussions between the City and PRC, and arrangements between PRC and AFB were cancelled. AFB asserts that a contract had been made, but no document had been signed and the City says no agreement had been reached.

PRC circulated a second request for proposals. AFB and CHP responded and again AFB was selected. The public out-cry resumed, and RFA and others, including CHP, planned a rally against longline fishing vessels and their potential use of the Center. Announcements were made by mail, newspapers, and over radio, and persons were urged to protest to the mayor against alleged use of City tax funds to bring out-of-state fishing vessels to South Carolina waters. In late July the mayor held a meeting in his office, and one or more representatives of RFA were included. The following day the mayor announced that he had come to better understand the issues, that he was changing his position, and that he would support recreational fishermen in the controversy.

The AFB group, joined by longline fishermen and their vessels, filed this suit in the United States District Court against RFA and CHP. Plaintiffs alleged conspiracy between RFA and CHP, restraint of trade, and interference with competition in violation of the Sherman Act, 15 U.S.C. § 1, and § 39-3-10 of the South Carolina Code of Laws. They also alleged related state law claims of interference with a contract or a prospective contract and for defamation.2

PRC's second selection of AFB was terminated, and the City took over operation of the Center. An operator was selected by the City, and the Center was opened. Several months later the City adopted a resolution barring from the Center longline vessels, longline tackle, and swordfish. It then brought in South Carolina state court a suit against the AFB group, seeking a judgment declaring that its resolution and the operation of the Center pursuant to the resolution were constitutional and violated no federal or state law. The case was removed to the District Court for the District of South Carolina, and the court granted summary judgment to the City. That decision has been appealed to this court, and contemporaneously with the decision of the present case it is reversed for lack of federal jurisdiction. City of Charleston, South Carolina, Mun. Corp. v. A Fisherman's Best, Inc.; AFB of Charleston, Inc., Ivan Miller and the fishing vessel Tri-Liner, 310 F.3d 155 (4th Cir.2002).

In the instant case claims against all defendants other than RFA were dismissed by plaintiffs. The district court granted summary judgment to RFA on all claims. It held that RFA was exempt from anti-trust liability under the Noerr-Pennington doctrine. See Eastern R.R. President' Conference v. Noerr Motor Freight, 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961); United Mine Workers of Am. v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965). With regard to intentional interference with prospective contractual relations the court, construing the facts favorably to plaintiffs, found that, RFA's purpose was to exercise First Amendment rights to petition the City government not to allow longliners at the Center, and that, if there was any interference with a contract, it was a by-product of the exercise of the First Amendment, and, even if there was intentional interference it was not done for an improper purpose. The conspiracy claim was rejected because there was no evidence that RFA had an improper purpose.

The defamation claim was based upon a statement made in ads and mail outs that the City was "bringing a big longline fishing fleet from Florida," and alleged implications that new boats would be docking at the Center, that the City was somehow subsidizing plaintiffs, and that the plaintiffs were destroying resources. The court found that the statements and implications were not defamatory. Moreover, it found that, regardless of who had the burden of proving falsity or truthfulness, the indisputable facts showed the statements and implications to be true.

I. ANTITRUST CLAIMS

AFB alleged a Sherman Antitrust Act violation for anticompetitive acts violating § 15 U.S.C. § 1. To succeed AFB must establish that there were two persons acting in concert and that the restraint complained of constitutes an unreasonable restraint on interstate trade or commerce. Estate Constr. Co. v. Miller & Smith Holding Co., Inc., 14 F.3d 213, 220 (4th Cir.1994). AFB alleged that RFA conspired with the CHP defendants to engage in antitrust activity by opposing AFB's efforts to contract to operate the Maritime Center. As examples of RFA's unreasonable anti-competitive actions AFB alleged distribution of flyers, placing ads in newspapers, and organizing and sponsoring rallies. Plaintiffs do not contend that the City was a co-conspirator.

The district court found that no party had addressed the question of whether plaintiffs had established a violation of antitrust law. Rather, for purposes of summary judgment, plaintiffs had assumed that this issue was not disputed and that the question for decision was whether RFA was exempt from antitrust liability. The court proceeded accordingly3 and held that RFA was exempt under the Noerr-Pennington doctrine. That doctrine states that horizontal competitors may join together to lobby government because antitrust violations cannot be predicated on attempts to influence the passage or enforcement of laws. The First Amendment shields such joint lobbying effort from antitrust liability even when the competitors are seeking governmental action that would eliminate competition or exclude competitors. See Professional Real Estate Investors, Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49, 56, 113 S.Ct. 1920, 123 L.Ed.2d 611 (1993). The underpinning of Noerr and its progeny is that Congress did not intend to subject to antitrust liability actions that had the immediate purpose of influencing legitimate governmental decisionmaking processes. The doctrine provides immunity to those who petition the government for redress. Id. The court found that RFA was not a competitor of AFB in the fishing industry and it found that RFA's actions were simply attempts to solicit...

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