Bardstown Capital Corporation, et al. v. Seiller Waterman, LLC, et al.

This Court’s precedent “finds all but sham law suits exempt from the reach of the antitrust laws.” BE & K Const. Co. v. N.L.R.B., 536 U.S. 516, 540 (2002) (Breyer, J., concurring in part) (emphasis added; citing Professional Real Estate Investors, Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49, 60–61 (1993); E. R.R. Presidents Conf. v. Noerr Motor Freight, Inc., 365 U.S. 127, 144 (1961)). Does this same precedent exempt all but sham lawsuits from the reach of state common-law torts, like wrongful use of civil proceedings?

For a lawsuit to be labeled a “sham” under this Court’s Noerr-Pennington doctrine, the lawsuit must first be “objectively baseless” such that “no reasonable litigant could realistically expect success on the merits.” Professional Real Estate Investors, 508 U.S. at 60. Does the mere fact that a litigant has standing, the statutory right, or ability to bring a legal challenge provide “probable cause” to file the lawsuit and alone prove the lawsuit is not “objectively baseless?”

This Court has not directly held that “a lawsuit is a constitutionally protected ‘Petition,’” under the First Amendment’s Petition Clause. Borough of Duryea, Pa. v. Guarnieri, 564 U.S. 379, 402 (2011) (Scalia, J., concurring in part, dissenting in part). Yet the Supreme Court of Kentucky held that a lawsuit for wrongful use of civil proceedings was prohibited because the targeted civil proceeding—a lawsuit challenging a zoning decision—was constitutionally protected. Was this in error?