Whether the Noerr-Pennington doctrine immunizes commercial bribery from liability under the Robinson-Patman Act

QUESTIONS PRESENTED This is an anti-trust case arising out of the use of “commercial bribery” in connection with the sale of portable video recording devices known as “body cams.” Citing news reports as well as the official findings of governmental auditors, Petitioner Digital Ally, Inc. (“Digital”) sued Respondent Taser International, Inc. (“Taser”) in the District of Kansas. Digital alleged that that Taser had excluded it and some 20 other competitors from the relevant market by bribing government officials to purchase its body cams, exclusively. In so doing, Taser had violated not only the anti-bribery provisions that appear in § 2(c) of the Robinson-Patman Amendments to the Clayton Act, 15 U.S.C. § 13(c) but other federal and state antitrust laws. On motion, the District Court dismissed all of Digital’s anti-trust claims. Citing City of Columbia v. Omni Outdoor Advertising, Inc., 499 U.S. 365 (1991), the District Court held that Taser had a constitutional right to “petition” these government officials to purchase its products, including through the use of bribery, and, accordingly, that Digital’s anti-trust claims were barred under the “Noerr-Pennington Doctrine.” That order of dismissal was then affirmed by the Federal Circuit, without opinion. The following represent important questions of federal anti-trust law that either should be settled by this Court or have been decided in a way that conflicts with relevant decisions of this Court: 1. In a case of first impression, the District Court held that since the sales in question were to “governmental” purchasers, Noerr-Pennington ii immunized Taser not merely from the “general” proscriptions upon anti-competitive conduct that appear in the Sherman Act and its state law equivalents, but the highly specific prohibitions against the use of bribery in connection with the interstate sale of goods, that appear in § 2(c) of the Robinson-Patman Act. Does this represent an unwarranted extension of Omni and of WNoerrPennington and is it otherwise contrary to this Court’s settled Robinson-Patman jurisprudence, notably the statement in California Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 512 (1972) that the “bribery of a public purchasing agent may constitute a violation of § 2(c) of the Clayton Act, as amended by the Robinson-Patman Act,” Noerr-Pennington notwithstanding, and the holding in Jefferson County Pharm. Assoc. v. Abbott Labs, 460 U.S. 150, 159-60, 161 and 171 (1983), that when Robinson-Patman was enacted, Congress was well aware of the prospect that the Act would apply to governmental purchases and yet declined to exempt such transactions from its provisions? 2. The District Court relied upon Omni for the proposition not only that there is no “conspiracy” exception to Noerr-Pennington , but that even conduct amounting to “bribery or some other violation of state or federal law” is immune from attack under the Sherman Act. Since there is no mention of “bribery” in the recitation of facts appearing in Omni; since no claims involving allegations of bribery were submitted to the Omni jury; since no claim of bribery was mentioned in the judgment which this Court ultimately reviewed on certiorari; and since bribery was nowhere discussed in the Omni dissent, is Omni’s iii suggestion that bribery of a public official is no less protected than any other form of “petitioning,” merely dicta, of no binding effect? 3. According to Omni, a showing, merely, that a governmental entity possessed the “authority to regulate” in the way that was alleged by the plaintiff to be anti-competitive, is all that is necessary in order for immunity, whether arising under Parker v. Brown, 317 U.S. 341 (1948) or under Noerr-Pennington, to attach. Was that regime of immunity, “ipso facto,” abrogated subsequently by North Carolina State Board of Dental Examiners v. FTC, 135 8. Ct. 1101 (2015) as the dissent in Board of Dental Examiners itself suggests and with it the Court’s dictum regardin