Circuit Split Regarding Noerr-Pennington Does Not Constitute Substantial Ground for Difference of Opinion

The court denied defendant’s motion for interlocutory appeal of a prior summary judgment order and rejected defendant’s contention that a substantial ground for difference of opinion existed on the question of whether statements incidental to a non-sham litigation were protected by Noerr-Pennington. “To be sure, cases from other circuits have reached conclusions that are favorable to [defendant’s] position. However, the mere fact that other courts have taken a different approach does not demonstrate a substantial difference of opinion under the meaning of § 1292(b). Moreover, as [plaintiff] argues, the Ninth Circuit in Sosa v. DIRECTV, Inc., 437 F.3d 923 (9th Cir. 2006) articulated that communications are protected so long as they are ‘sufficiently related to petitioning activity.’ Courts within this circuit have applied Sosa since it was issued in 2006. Thus, the Court agrees with [plaintiff’s] argument that the Ninth Circuit has addressed the issue raised by [defendant]. Moreover, even assuming that the Ninth Circuit has not addressed the precise question [defendant] seeks to certify, that fact would be insufficient to support an existence of a ‘substantial ground for difference of opinion.'”

Arista Networks, Inc. v. Cisco Systems Inc., 5-16-cv-00923 (CAND 2018-06-08, Order) (Beth Labson Freeman)

2018-06-12T11:56:02+00:00 June 12th, 2018|Antitrust, Docket Report|