Hospital’s Campaign to Block New Entrant Protected by Noerr-Pennington Doctrine

The Seventh Circuit has affirmed the district court’s grant of summary judgment in favor of Lake Forest Hospital in a Section 2 case filed by the Mercatus Group, which was attempting to open a competing health care facility.  Lake Forest adopted a multi-pronged campaign to (1) lobby the local council not to grant Mercatus the relevant permits; (2) present a publicity campaign to encourage residents to similarly lobby the council; (3) urged medical groups to withdraw from tentative agreements with Mercatus; and (4) urged physicians not to practice in Mercatus’s facility.  The campaign was successful and the competing facility was not approved.  The court found that the lobbying activity, which included the publicity campaign, was protected by the Noerr-Pennington doctrine, even assuming that many statements made were false.  The sham exception for fraudulent misrepresentations does not apply to legislative lobbying.   Statements made directly to hospitals and competitors were not protected by Noerr, but were either protected speech or not predatory.

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