Sosa

I respectfully concur in the result.

The majority opinion is essentially advisory. If we affirm the decision of the district court, Sosa loses. If we reverse *943 the district court and reinstate this action, Sosa still loses because the California state court judgment is now final and would bar all of Sosa’s claims. 1 I would file a short order stating that fact, and reserve the extensive discussion of Noerr-Pennington and RICO for a case in which it is necessary to decide those questions.

. In my view, Flood v. Harrington, 532 F.2d 1248 (9th Cir.1976), does not command otherwise. Flood had no occasion to consider what effect a California court would give to the judgment, as we must do here. See 28 U.S.C. § 1738 . The plaintiff in Flood did not lose in state court, and then file essentially the same action in federal court, as Sosa did here. Rather, the decision on appeal in Flood was entered first, and both decisions were entered by a federal court. Furthermore, the two actions in Flood involved different claims and parties. Lastly, Flood did not consider what would transpire on remand had the panel found in favor of the plaintiff, and reinstated his action.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROD SOSA; GARY WHITTAKER; 

RODNEY BYLSMA,

Plaintiffs-Appellants, v.

DIRECTV, INC.; HUGHES

ELECTRONICS CORPORATION;

GENERAL MOTORS CORPORATION; No. 04-55036

YARMUTH WILSDON CALFO, PLLC;

GREER, HERZ & ADAMS, LLP;  D.C. No.

CV-03-05972-AHM

STUMP, STOREY, CALLAHAN &

OPINION

DIETRICH, PA; DIRECTV END

USER DEVELOPMENT GROUP;

DIRECTV END USER RECOVERY

PROJECT, LLC; SECURE SIGNALS

INTERNATIONAL; MCGINNIS GROUP

INTERNATIONAL, LLC,

Defendants-Appellees.  Appeal from the United States District Court for the Central District of California A. Howard Matz, District Judge, Presiding

Argued and Submitted November 14, 2005—Pasadena, California

Filed February 15, 2006

Before: Ferdinand F. Fernandez and Marsha S. Berzon, Circuit Judges, and Owen Panner,* District Judge.

*The Honorable Owen Panner, Senior United States District Judge for the District of Oregon, sitting by designation.

1669 1670 SOSA v. DIRECTV, INC. Opinion by Judge Berzon; Concurrence by Judge Panner SOSA v. DIRECTV, INC. 1673

COUNSEL

Jeffrey Willens, Esq.,…

DIRECTV, Inc., et al. (“DIRECTV”) sent tens of thousands of demand letters alleging that the recipients had accessed DIRECTV’s satellite television signal ille- *926 gaily and would be sued if they did not quickly settle DIRECTV’s claims against them under the Federal Communications Act. Plaintiffs Rod Sosa, et al. (“Sosa”) filed this class action lawsuit on behalf of themselves and a putative class of recipients of the letters who reached settlements with DIRECTV, claiming that DIRECTV violated the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1961-1968 , by mailing the pre-suit demand letters. The central question before us is whether DIRECTV is immune from liability under RICO, as interpreted in light of the Noerr-Pennington doctrine deriving from the Petition Clause of the First Amendment.

I.

DIRECTV broadcasts television signals via satellite to millions of consumers throughout the United States. The signals broadcast from the satellites are electronically scrambled. To receive the signals in an intelligible manner, the consumer needs to purchase special electronic equipment from third-party vendors, and also needs an access card, or “smart…