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CIPOLLONE v. LIGGETT GROUP

September 4, 1987

Antonio Cipollone, individually and as executor of the estate of Rose D. Cipollone, Plaintiff,
v.
Liggett Group, Inc., et al., Defendants



The opinion of the court was delivered by: SAROKIN

 Defendants move to bar the introduction of evidence relating to their lobbying activities in connection with legislation affecting the cigarette industry. Although neither party has submitted any specific evidence to be ruled upon, plaintiff generally proposes to introduce evidence of rewards to members of Congress who voted favorably to the industry on such legislation, and instances of the submission of false and misleading information to improperly influence such legislation. *fn1"

 DISCUSSION

 Defendants, motion to exclude is premised on the so-called Noerr-Pennington doctrine. *fn2" That doctrine, developed in the antitrust context, provides that the first amendment prevents the imposition of liability for "mere attempts to influence the Legislative Branch for the passage of laws or the Executive Branch for their enforcement." California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 510, 30 L. Ed. 2d 642, 92 S. Ct. 609 (1972); see United Mine Workers v. Pennington, 381 U.S. 657, 14 L. Ed. 2d 626, 85 S. Ct. 1585 (1965); Eastern R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 5 L. Ed. 2d 464, 81 S. Ct. 523 (1961). The Court has extended the doctrine to similarly protect the first amendment right to petition the courts or administrative agencies. See California Motor Transport Co., 404 U.S. at 510.

 Defendants contend that plaintiff's motivation in introducing the disputed evidence is an attempt to impose liability on the basis of protected "lobbying," in contravention of the Noerr-Pennington doctrine. Furthermore, defendants contend that such evidence is not admissible for any other purpose. The court evaluates defendants, arguments with respect to the two types of evidence plaintiff seeks to introduce -- that defendants offered financial rewards to legislators who supported the cigarette industry and that defendants consistently made misrepresentations and gave false information to Congress.

 A. Financial rewards to legislators

 Plaintiff seeks to introduce evidence that defendants offered jobs to members of Congress who acted favorably towards them. The court holds that such evidence is not evidence of "lobbying" activity entitled to Noerr-Pennington protection.

 In Noerr, the court recognized a limited exception to its general rule.

 
There may be situations in which a publicity campaign, ostensibly directed toward influencing governmental action, is a mere sham to cover what is actually nothing more than an attempt to interfere directly with the business relationships of a competitor and the application of the Sherman Act would be justified.

 365 U.S. at 144. This "sham" exception applies to situations where the goal of the political activity is to directly injure a competitor, and the political actor has no real interest in the outcome of its actions. See California Motor Transport, 404 U.S. at 512. The exception, in this limited sense, is inapplicable to defendants, activity -- plaintiffs cannot seriously contend that defendants offered jobs to legislators in order to directly harm plaintiff, and that defendants had no interest in the pending legislation in Congress.

  However, several courts have also held that the Noerr-Pennington doctrine was not "intended to protect those who employ illegal means to influence their representatives in government." Sacramento Coca-Cola Bottling Co. v. Chauffeurs, Teamsters & Helpers Local No. 150, 440 F.2d 1096, 1099 (9th Cir. 1971); see Central Telecommunications, Inc. v. TCI Cablevision, Inc., 800 F.2d 711, 724 (8th Cir. 1986)(citing Westborough Mall Inc., v. City of Cape Girardeau, 693 F.2d 733, 746 (8th Cir. 1982), cert. denied, 461 U.S. 945, 77 L. Ed. 2d 1303, 103 S. Ct. 2122 (1983)), cert. denied, 480 U.S. 910, 107 S. Ct. 1358, 94 L. Ed. 2d 528 (1987); Federal Prescription Service, Inc. v. American Pharmaceutical Ass'n, 214 U.S. App. D.C. 76, 663 F.2d 253 (D.C. Cir. 1981). Noerr explained that Congress "has traditionally exercised extreme caution" in regulating political conduct. 365 U.S. at 141. Furthermore, courts have recognized that conduct that would be sanctioned in an adjudicative context may be protected conduct in the legislative realm. See, e.g., California Motor Transport, 404 U.S. at 512, 513; Metro Cable Co. v. CATV of Rockford, Inc., 516 F.2d 220, 228 (7th Cir. 1975). Nonetheless, the courts cited above have reasoned that the purpose behind the Noerr-Pennington rule -- that the exercise of first amendment freedoms should not be chilled by the threat of potential liability -- does not extend to lobbying methods that "subvert the integrity of the governmental process." Federal Prescription Service, Inc. v. American Pharmaceutical Ass'n, 214 U.S. App. D.C. 76, 663 F.2d 253, 262 (D.C. Cir. 1981).

 One court has explicitly identified "attempts to influence governmental action through overtly corrupt conduct such as bribes" as an example of unprotected activity tending to subvert the integrity of the political process. Federal Prescription Service, Inc., 663 F.2d at 263. If plaintiff can prove, as he alleges, that defendants improperly rewarded legislators for their actions in proposing or opposing certain legislation, it is inconceivable that such activity is entitled to first amendment protection. That kind of illegal or unethical conduct is not worthy of such protection. If plaintiff offers evidence that such conduct occurred, and that evidence is otherwise relevant and admissible, the first amendment should not bar its introduction. Such conduct is not protected free speech. It corrupts the system rather than advances it.

 The court denies defendants, motion with respect to evidence that defendants offered financial rewards to elected officials to induce legislative action. ...


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