APPEAL
FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
PUERTO RICO [Hon. John A. Woodcock, Jr., [*] U.S. District Judge]
Patrick J. Pascarella, Jr., with whom Benjamin C.
Sassé and Tucker Ellis LLP were on brief, for
appellant.
Jacob
(Yaakov) M. Roth, with whom Brinton Lucas, Thomas Demitrack,
Brian K. Grube, Jones Day, Orlando Fernandez, and Orlando
Fernandez Law Offices were on brief, for appellee.
Before
Torruella, Kayatta, and Barron, Circuit Judges.
KAYATTA, CIRCUIT JUDGE.
Puerto
Rico Telephone Company, Inc., (PRTC) sought permission from
the Puerto Rico Telecommunications Regulatory Board (TRB) to
offer internet protocol television service to the residents
of Puerto Rico. At the time, San Juan Cable LLC, doing
business as "OneLink, " provided cable television
service to residents of several municipalities in Puerto
Rico, including San Juan. Not eager to face competition,
OneLink petitioned the TRB and other government officials and
tribunals, including Commonwealth and federal courts, to
deny, slow down, or otherwise impede PRTC's efforts.
After eventually obtaining the needed permission from the
TRB, PRTC filed this antitrust action claiming that
OneLink's interference with PRTC's permitting efforts
constituted unlawful monopolization and attempted
monopolization in violation of both the Sherman Act, 15
U.S.C. § 2, and the Puerto Rico Anti-Monopoly Act, P.R.
Laws Ann. tit. 10, §§ 257-276. Granting summary
judgment to OneLink, the district court concluded that
OneLink's actions were immunized from suit under the
Noerr-Pennington doctrine, which
conditionally protects the right to petition the government.
See E. R.R. Presidents Conference v. Noerr Motor Freight,
Inc. (Noerr), 365 U.S. 127 (1961); United
Mine Workers of Am. v. Pennington (Pennington),
381 U.S. 657 (1965). In so ruling, the district court
rejected PRTC's argument that the facts could support a
finding that OneLink abused its right to petition and could
be found liable under the so-called "sham"
exception to the Noerr-Pennington immunity.
See Cal. Motor Transp. Co. v. Trucking Unlimited,
404 U.S. 508, 511-12 (1972) (extending both
Noerr-Pennington immunity and the sham
exception to petitioning of courts and administrative
agencies). For the following reasons, we agree with the
district court that the facts in this case could not subject
OneLink to liability under the sham exception.
I.
A.
The
parties' disagreement on appeal begins with OneLink's
win-loss record in its multi-tribunal petitioning activity
aimed at impeding PRTC's efforts to secure permission to
compete against OneLink. A detailed description of
OneLink's filings with the TRB, the Puerto Rico courts,
and the federal courts, its communications with Puerto Rico
officials and federal officials, and the resolutions of those
filings and communications can be found in the district
court's two published opinions. See P.R. Tel. Co. v.
San Juan Cable Co. (PRTC I), 196 F.Supp.3d 207,
215-24 (D.P.R. 2016); P.R. Tel. Co. v. San Juan Cable
Co. (PRTC II), 196 F.Supp.3d 248, 253-98
(D.P.R. 2016). PRTC claims that those filings and
communications collectively constituted twenty-four
"petitions" in the form of requests that a court or
other government tribunal, agency, or official take action
adverse to PRTC's license application, and that OneLink
failed to prevail on any of those petitions. OneLink avoids
taking a firm position on its win-loss record apart from
suggesting that the district court's count (four wins out
of thirteen petitions) was closer to the mark.
The
parties' divergent counts flow from disagreements about
whether to treat motions filed in the course of a single
proceeding as separate petitions, and whether to rank an
interlocutory procedural win as a loss if the proceeding
ultimately resulted in a decision against OneLink. Thus, for
example, the district court counted OneLink's request to
intervene in the second franchise proceeding before the TRB
along with several other motions filed in connection with
that request as a single petition, see PRTC II, 196
F.Supp.3d at 324, 337, while PRTC argues that each motion
filed with the TRB constitutes a separate petition. Likewise,
the district court counted as a win the issuance of an order
to show cause why a temporary restraining order should not
issue by a federal district court in a suit that was
ultimately dismissed as moot, see id. at 279-80,
325, 338, while PRTC argues that merely securing a show cause
order is not a win.
For our
purposes, we need not resolve these disputes concerning
OneLink's win-loss record. Rather, we can assume, as PRTC
argues, that OneLink's various filings can be viewed as
twenty-four separate petitions, and that none resulted in a
meaningful victory. We must also assume, though, that all
twenty- four filings were "objectively reasonable"
in the sense that a "reasonable litigant could
realistically expect success on the merits."
Prof'l Real Estate Inv'rs, Inc. v. Columbia
Pictures Indus., Inc. (PREI), 508 U.S. 49, 60
(1993). We make this latter assumption because the district
court so found after examining each of OneLink's various
filings, see PRTC II, 196 F.Supp.3d at 325-35, and
PRTC has waived any challenge to those findings. PRTC did not
make any such challenge in its main brief on appeal. See
Sparkle Hill, Inc. v. Interstate Mat Corp., 788 F.3d 25,
29 (1st Cir. 2015) ("[W]e do not consider arguments for
reversing a decision of a district court when the argument is
not raised in a party's opening brief."); see
also Nat'l Foreign Trade Council v. Natsios, 181
F.3d 38, 60 n.17 (1st Cir. 1999) ("We have repeatedly
held that arguments raised only in a footnote or in a
perfunctory manner are waived."). It also failed to make
any case for excusing the waiver in its reply
brief[1] or at oral argument. Indeed, the entire
oral argument proceeded on the assumption that the district
court's findings that all the petitions were objectively
reasonable would stand. Although we can excuse waiver of this
sort in certain cases, this is not such a case. Assessing the
merits of OneLink's petitions requires detailed analyses
of a large number of different filings. We decline to
undertake those analyses without briefing.[2]
B.
PRTC's
waiver of any argument that some of OneLink's numerous
filings were baseless creates an immediate obstacle to
PRTC's ability to maintain this lawsuit. The general rule
is that a defendant cannot be held liable under the Sherman
Act for petitioning the government, including by filing a
lawsuit. See Cal. Motor Transp., 404 U.S. 510-13.
PRTC relies on an important exception to that rule, known as
the "sham" exception. See id. (citing,
inter alia, Noerr, 365 U.S. at 144). In
PREI, however, the Supreme Court held that a
lawsuit, even when employed as an anticompetitive weapon,
could only fall within the sham exception if the suit was
"objectively baseless in the sense that no reasonable
litigant could realistically expect success on the
merits." 508 U.S. at 60-61. We assume, as do the
parties, that PREI also applies to a petition filed
before an administrative agency or another executive
official. See 508 U.S. at 59-60 ("We dispelled
[in Columbia v. Omni Outdoor Advertising, Inc., 499
U.S. 365 (1991)] the notion that an antitrust plaintiff could
prove a sham merely by showing that its competitor's
purposes were to delay [the plaintiff's] entry into the
market and even to deny it a meaningful access to the
appropriate . . . administrative and legislative
fora.")(internal quotation marks omitted, brackets and
ellipsis in original). Given PRTC's failure to argue that
any one of OneLink's petitions was objectively baseless,
it is clear that no single petition could support the
imposition of antitrust liability on OneLink. Accordingly,
PRTC must predicate its appeal on the contention that the
serial nature of OneLink's petitioning materially
distinguishes this case from PREI; that is to say, a
jury could find OneLink liable for launching a fusillade of
ultimately unsuccessful petitions even if no one petition was
sufficiently baseless to fit within the "sham"
exception under PREI. We therefore turn next to that
contention.
C.
In
pursuit of its effort to distinguish PREI, PRTC
tries to find company in the decisions of several other
circuits that have construed California Motor
Transport and PREI as compatibly establishing
different tests depending on whether more than one petition
is challenged as abusive. In brief, this argument first
restricts PREI's "objectively
baseless" requirement to cases involving a single
petition rather than a series of petitions. To assess a
series of petitions, the argument relies instead on language
in California Motor Transport describing as outside
the scope of Noerr-Pennington immunity the
"institut[ion of] proceedings and actions . . . with or
without probable cause, and regardless of the merits of the
cases, " 404 U.S. at 512. As construed by PRTC, this
argument also reads "with or without probable
cause" and "regardless of the merits, "
id., as including both petitions brought "with
. . . probable cause" and with "merit[]" where
the defendant's decision to file the series of petitions
paid no heed to whether they had merit. So framed, the
argument views PREI very much through the lens of
Justice Stevens's concurrence. See PREI, 508
U.S. at 73 (Stevens, J., concurring in the judgment)
("Repetitive filings, some of which are successful and
some unsuccessful, may support an inference that the process
is being misused. In such a case, a rule that a single
meritorious action can never constitute a sham cannot be
dispositive." (citing Cal. Motor Transp., 404
U.S. 508)).
The
circuit court opinions to which PRTC points--that is to say
opinions of the four circuits to have addressed similar
arguments directly--all in one way or another adopt some
variant of this view of the respective applicability of
PREI and California Motor Transport.
See Hanover 3201 Realty LLC v. Vill. Supermarkets,
Inc., 806 F.3d 162, 179-81 (3d Cir. 2015), cert.
denied, 136 S.Ct. 2451 (2016); Waugh Chapel S., LLC
v. United Food & Commercial Workers Union Local 27,
728 F.3d 354, 363-64 (4th Cir. 2013) (doing so in the context
of the Noerr-Pennington doctrine as applied
to an unfair labor practices claim); Primetime 24 Joint
Venture v. Nat'l Broad. Co., 219 F.3d 92, 100-01 (2d
Cir. 2000); USS-POSCO Indus. v. Contra Costa Cty. ...