Commercial Division Blog

Posted: November 27, 2019 / Categories Commercial, Defamation

Retaliation Claims Barred by Noerr-Pennington Doctrine

On November 15, 2019, Justice Scarpulla of the New York County Commercial Division issued a decision in Pozner v. Fox Broadcasting Co., 2019 NY Slip Op. 33415(U), holding that retaliation claims were barred by the Noerr-Pennington doctrine, explaining:

Pozner's retaliation claim alleges that Fox's counterclaims were brought solely as retaliation for Pozner's claims of discrimination and are therefore actionable. Fox argues that the cause of action for retaliation must be dismissed under both the federal Noerr-Pennington doctrine and New York state law. The Noerr-Pennington doctrine holds that parties many not be subjected to liability for petitioning the government such as by filing litigation.

Further, the immunity provided by the Noerr-Pennington doctrine applies so long as the litigation is not a sham. Sham litigation in this context is defined as litigation that is both (1) objectively baseless and (2) not sincerely and honestly felt or experienced, i.e., brought in bad faith.

As Fox's counterclaim is a petition that seeks redress from the court, pursuant to the Noerr-Pennington doctrine it cannot be the basis of a claim for retaliation. And, the exception to the doctrine for sham litigation is not applicable because I previously determined, in the July 2017 Decision, that Fox adequately pled a breach of contract claim, thus the counterclaim is not objectively baseless.

None of Pozner's arguments in opposition to Fox's motion to dismiss require a different conclusion. First, Pozner asserts that the Noerr-Pennington doctrine does not warrant dismissal of its retaliation claim but this argument is conclusory and fails to cite to any supporting cases. Pozner does attempt to distinguish Fox's cases by stating that none of the cases pertained to discrimination or counter-claims based on retaliation for filing such claims.

Although the Noerr-Pennington doctrine initially arose in the antitrust field, the courts have expanded it to protect First Amendment petitioning of the government from claims brought under Federal and State law. There are no New York cases either applying or prohibiting the Noerr-Pennington doctrine in the context of retaliation claims. However, given other courts' interpretations that the doctrine applies equally in all contexts, and the importance of the right to petition, I find that it applies here.

(Internal quotations and citations omitted).

Civil litigation can involve claims that cause real reputational harm, but not every statement can be the subject of a defamation claim. Contact Schlam Stone & Dolan partner John Lundin at if you or a client have questions about whether statements about you or your business can be the basis for a claim for defamation.