Cite as 795 F.Supp. 639 (S.D.N.Y. 1992)
Although the California Motor Court broadened the scope of antitrust immunity in some respects, it nonetheless emphasized that the Noerr–Pennington doctrine was not absolute. Expanding on the “sham exception” foreshadowed in Noerr, the Court stated that the doctrine would not apply where a defendant’s invocation of the adjudicative process “ ‘is a mere sham to cover what is actually nothing more than an attempt to interfere directly with the business relationships of a competitor.’ ” California Motor, 404 U.S. at 511, 92 S.Ct. at 612 (quoting Noerr, 365 U.S. at 144, 81 S.Ct. at 538). While the Court did not elaborate on the contours of the sham exception, it did state that “[m]isrepresentations, condoned in the political arena, are not immunized when used in the adjudicatory process,” and that unethical conduct in the latter arena, such as inducing the perjury of witnesses, enforcing a patent obtained by fraud, or bribing an official, could give rise to a finding of sham activity. See id. 404 U.S. at 512–13, 92 S.Ct. at 612–13.
Applying these principles to the case at hand, we are unable to conclude as a “matter of law” that this litigation is protected under the Noerr–Pennington doctrine. MAJ argues that because the action was initiated for a non-sham purpose—namely the protection of its trademark rights—the suit was by definition something other than an attempt to interfere with the business relations of a competitor and therefore fails to fall within the sham exception.[1] We decline to construe Noerr–Pennington so broadly, however, and instead find that if the copyright claims themselves were added for an anticompetitive purpose, that might be sufficient to bring them within the sham exception to the doctrine. Because we cannot adequately assess MAJ’s purpose in adding the copyright claims at this juncture of the proceedings, MAJ’s contention that this litigation is “non-sham” as a matter of law must be rejected.
Rule 9(b).
Peacock’s antitrust claim relies heavily on charges of fraud and therefore those allegations must be scrutinized under Fed.R.Civ.P. 9(b). In order to conform to the requirements of that rule, Peacock’s fraud allegations must specify the time, place, speaker and content of the alleged misrepresentations, see Cosmas v. Hasset, 886 F.2d 8, 11 (2d Cir.1989), and must state specific facts supporting the claims of fraud.
In this instance, Peacock’s fraud charges are premised on allegedly false representations of originality to the Copyright Office. Because those alleged misrepresentations are contained in the applications for copyright registration, each of which Peacock has attached as exhibit C to its amended countercomplaint,[2] they satisfy the rule’s requirement that the misrepresentations be identified with particularity. See Luce v. Edelstein, 802 F.2d 49, 55 (2d Cir.1986) (holding that misrepresentations made in a written document such as an offering memorandum satisfy 9(b)’s requirements as to time, place, and content of the alleged misrepresentations). In addition, by setting forth the detailed history by which MAJ gained access to and allegedly copied the charm designs, Peacock has provided a factual basis for its claim that the representations of originality were false. Finally, Peacock has adequately alleged scienter in stating that MAJ should have known that
- ↑ MAJ does cite one case in support of this proposition, see Aircapital Cablevision, Inc. v. Starlink Communications Group, Inc., 634 F.Supp. 316, 322 (D.Kan.1986) (because the plaintiff had brought at least one of the claims in its complaint in good faith, the lawsuit did not become “sham” “even if the [copyright] infringement claims were included spuriously”). While this Court is not bound by a decision of the District of Kansas, we note that in Aircapital, the predicate lawsuit had already been resolved, and the trial court therefore had a much better sense of whether or not it was brought in good faith. In light of the fact that discovery has not even closed in this action, this Court is confronted with an entirely different factual situation.
- ↑ Because Peacock has attached these copyright registrations to the amended countercomplaint and referred to them in its allegations, the amended pleadings are deemed to include them for the purposes of Rule 12(b)(6). See Goldman v. Belden, 754 F.2d 1059, 1065–66 (2d Cir.1985).
