Energy Conservation, Inc. v. Heliodyne, Inc.

698 F.2d 386 1982-83 Trade Cases 65,179 ENERGY CONSERVATION, INC., Plaintiff-Appellee, v. HELIODYNE, INC., Defendant-Appellant. No. 81-4662. United States Court of Appeals, Ninth Circuit. Argued and Submitted Sept. 15, 1982. Decided Feb. 1, 1983. Bartholomew Lee, Paige Leslie Wickland, San Francisco, Cal., for defendant-appellant. Jan T. Chilton, Severson, Werson, Berke & Melchior, Albert B. Wenzell, Jr., St. Clair, Zappettini, McFertridge, San Francisco, Cal., for plaintiff-appellee. Appeal from the United States District Court for the Northern District of California. Before MERRILL and POOLE, Circuit Judges, and ROTHSTEIN * , District Judge. POOLE, Circuit Judge: 1 Energy Conservation, Inc. (ECI) appeals the dismissal of its antitrust action for failure to state a claim. In its complaint ECI alleged that Heliodyne and its coconspirators brought a lawsuit in state court for the purpose of generating publicity adverse to ECI, with the intent to monopolize or attempt to monopolize the relevant market in violation of section 2 of the Sherman Act, 15 U.S.C. Sec. 2 . The district court dismissed the action either because it rationalized that the complaint treated the state court…

Energy Conservation, Inc. (ECI) appeals the dismissal of its antitrust action for failure to state a claim. In its complaint ECI alleged that Heliodyne and its coconspirators brought a lawsuit in state court for the purpose of generating publicity adverse to ECI, with the intent to monopolize or attempt to monopolize the relevant market in violation of section 2 of the Sherman Act, 15 U.S.C. § 2 . The district court dismissed the action either because it rationalized that the complaint treated the state court lawsuit as a sham action, and that a single lawsuit could never constitute a sham under the Noerr-Pennington 1 doctrine, or because the complaint lacked sufficient specificity. In the aftermath of this court’s recent decision in Clipper Exxpress v. Rocky Mountain Motor Traffic Bureau, 690 F.2d 1240 (9th Cir.1982), issued after the district court’s order of dismissal and the benefit of the reasoning of which was not available to that court, we reverse and remand for consideration in the light of Clipper Exxpress . FACTS

ECI’s complaint alleged that Heliodyne, ECI’s competitor in the solar energy field, conspired with a law firm, which it named as a defendant, and with clients…

concurring:

I concur in Judge Poole’s opinion. I add this note to express the view that whether the state court suit that is the subject of the complaint is sham will depend on the purpose of the plaintiffs in bringing it rather than on the purpose of Heliodyne in promoting it.