Antitrust Law Daily Wrap Up, ANTITRUST NEWS: AAI supports challenge to Third Circuit Noerr-Pennington immunity for knowing misrepresentations to adjudicatory bodies, (Aug 15, 2025)

By Justin Marcus Smith, J.D.

The American Antitrust Institute urged that “misrepresentations are incapable of advancing any legitimate social interests, whether as a matter of free speech, petitioning, or competition policy.”

The American Antitrust Institute (AAI) announced the submission of an amicus brief in support of Chatom Primary Care, P.C. and others similarly situated in their petition for certiorari before the United States Supreme Court about Noerr-Pennington immunity in the Third Circuit. AAI urged the high court to grant Chatom’s petition; to resolve the circuit split with the Third Circuit in favor of the other circuits; and to formally adopt a misrepresentation exception to Noerr-Pennington. AAI proposed a “tailored” framework such that when “petitioning” by anticompetitive misrepresentation occurs during an adjudicatory process, it should fall within an exception to Noerr-Pennington if it is (1) knowing and (2) influential to government action. The AAI provided a short summary of its amicus brief in a press release (Chatom Primary Care, P.C. v. Merck & Co., Inc., No. 25-45 (U.S. Aug. 11, 2025)).

Chatom petitioned the Supreme Court in connection with allegations that pharmaceutical manufacturer Merck & Co., Inc. (Merck) knowingly made misrepresentations to an adjudicatory body of the Food and Drug Administration (FDA). The Third Circuit opinion at issue granted Merck & Co. immunity from antitrust claims related to submissions made to the FDA regarding Merck's mumps vaccine. The alleged misrepresentations were about the shelf-life potency of a mumps vaccine. Chatom said Merck used the misrepresentations to monopolize and prevent competitive entry. If Chatom were to prevail at trial, that would mean Merck unjustifiably handicapped a rival, distorted the adjudication process, and denied consumers the benefits of competition. AAI noted courts of appeals other than the Third Circuit have held Noerr-Pennington does not immunize knowing misrepresentations.

The AAI argued knowing misrepresentations serve no useful purpose and hence the High Court must clarify whether Noerr-Pennington immunizes fraudulent misrepresentations. AAI said the Third Circuit’s present interpretation of the Noerr-Pennington doctrine expands on disfavored immunity by shielding knowing misrepresentations to adjudicators from antitrust scrutiny. Other circuits have rejected such an “extreme” and potentially “corrupt[ing]” approach.

The AAI brief continued that making the alleged Merck behavior in this case subject to trial, as other circuits do, will not hinder the Noerr-Pennington doctrine’s underlying policy of protecting petitions that “inform the government.” The AAI brief reasoned that alleged fraud and knowing misrepresentations do not inform the government. They misinform. In the instant matter, Merck allegedly “prevented the FDA from drawing accurate conclusions about the characteristics of Merck’s product.” If true, that might mean consumers were denied the benefit of competitive entry and suffered monopolistic harm.

The AAI cited that false statements have no constitutional value. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 340 (1974). In the view of the AAI, in the absence of a misrepresentation exception, Noerr-Pennington will “vitiate a large swath of the socially beneficial public and private antitrust claims challenging deceptive conduct.” First Amendment rights, for example, are not immunized from regulation when used as an integral part of conduct violating a valid statute. And, in the antitrust context, courts often find that deceit satisfies the conduct element of meritorious Sherman Act claims. Most adjudicatory bodies do not have the time or resources to conduct independent investigations, but the promise of antitrust liability for anticompetitive misrepresentations, as in other circuits, creates an incentive not to fraudulently misrepresent facts in regulatory proceedings.

The AAI brief continued that a misrepresentation exception to Noerr-Pennington would not only be in full accord with the right to petition the government, it would be easy to administer. AAI said the First Circuit, in accord with the major positions of other circuits and the FTC, has provided the simple and easily administrable articulation that parties who make knowing misrepresentations are not entitled to immunity. The AAI cited that an FTC Staff Report has recommended that where a communication undermines a valid and independent government decision, it should not get any special treatment. It should be subject to the antitrust laws.

The case is No. 25-45.

Attorneys: Joshua P. Davis (Matthew Summers Berger Monague PC) for American Antitrust Institute.

Companies: American Antitrust Institute

News: Antitrust GCNNews