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B&G Foods North America, Inc. v. Embry

United States Court of Appeals for the Ninth Circuit · 2022 · Civil Procedure

Civil ProcedureNoerr-Pennington doctrineSection 1983Petition ClauseLeave to amend42 U.S.C. § 1983Petition Clauseprelitigation communications

Facts

California Proposition 65 allows private enforcers, after notice and certain waiting requirements, to sue businesses that expose individuals to chemicals listed by the state as causing cancer without a warning. Embry, represented by Glick, served B&G with a notice of violation and later sued in state court, alleging that B&G's Cookie Cakes contain acrylamide and lacked the required warning. B&G alleged that the naturally occurring acrylamide in its Cookie Cakes does not cause cancer and that defendants' notice and suit compelled false speech in violation of the First Amendment. B&G sought injunctive, declaratory, and damages relief under § 1983.

Issue

Whether Noerr-Pennington bars a § 1983 action against private Proposition 65 enforcers and their attorney based on their prelitigation notice and enforcement suit, assuming they are state actors. Also, whether the district court properly denied leave to amend on futility grounds.

Rule

To determine whether conduct is immunized under Noerr-Pennington, courts apply a three-step analysis: (1) whether the plaintiff's suit burdens petitioning rights, (2) whether the challenged conduct is protected petitioning activity, including whether any sham exception applies, and (3) whether the statute at issue can be construed to avoid burdening that protected petitioning. In the Ninth Circuit, § 1983 is construed not to impose liability for protected petitioning conduct, and sham litigation exceptions may apply where a suit is objectively baseless and unlawfully motivated, where a series of suits are filed without regard to the merits for an unlawful purpose, or where intentional misrepresentations to the court deprive the litigation of legitimacy.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Sacramento, Maya Torres, acting under a California voter-enacted environmental statute, sent North Valley Roasters a required pre-suit notice and then filed an enforcement action in state court. North Valley responded with a § 1983 suit seeking damages and an injunction barring Torres from sending future notices or filing similar suits against it.

Assuming Torres is a state actor, what is the strongest argument that the first step of Noerr-Pennington is satisfied?

Explanation. Step one asks whether the plaintiff's suit would burden the defendant's petitioning rights. A suit seeking to enjoin or impose liability for sending prelitigation notices and filing enforcement litigation burdens the ability to petition. The court made clear that filing suit is petitioning and that conduct incidental to suit, including prelitigation communications, is also covered. (Derived from B&G Foods North America, Inc. v. Embry (n.d.).)