Court Dismisses Retaliation Claim, Predicated on Counterclaim, Under the Noerr-Pennington Doctrine

In Pozner v. Fox Broadcasting Co., No. 652096/2017, 2019 WL 6117960, 2019 N.Y. Slip Op. 33415(U) (N.Y. Sup Ct, New York County Nov. 18, 2019), the court dismissed plaintiff’s retaliation claim, which was based on the filing of a counterclaim by the defendant.

Some background: The plaintiff (Pozner) worked was a Fox executive vice president. The defendant (Fox) had terminated Pozner after conducting an investigation into alleged sexual harassment and determining that Pozner violated its Standards of Business Conduct. Pozner alleges that his termination was actually due to anti-Semitism at Fox; in April 2017 he filed a complaint against Fox alleging breach of contract and religious discrimination. Fox responded by, inter alia, filing counterclaims for breach of contract and breach of fiduciary duty. The court, in a prior ruling, dismissed Fox’s breach-of-fiduciary-duty counterclaim. Pozner filed an amended complaint, adding a third cause of action, asserting that Fox’s counterclaims against Pozner constituted unlawful retaliation in violation of the New York State and City Human Rights Laws. Fox then moved to delete that claim.

Specifically, Fox argues that the retaliation cause of action must be dismissed under both the federal Noerr-Pennington doctrine and New York state law. The court agrees.

From the decision (citations omitted):

The Noerr-Pennington doctrine holds that parties many not be subjected to liability for petitioning the government such as by filing litigation. Further, the immunity provided by the Noerr-Pennington doctrine applies so long as the litigation is not a sham. Sham litigation in this context is defined as “litigation that is both (1) objectively baseless and (2) not sincerely and honestly felt or experienced, i.e., brought in bad faith.

As Fox’s counterclaim is a petition that seeks redress from the court, pursuant to the Noerr-Pennington doctrine it cannot be the basis of a claim for retaliation. And, the exception to the doctrine for sham litigation is not applicable because I previously determined, in the July 2017 Decision, that Fox adequately pled a breach of contract claim, thus the counterclaim is not objectively baseless.

In rejecting plaintiff’s arguments against dismissal, the court observed that while the Noerr-Pennington doctrine first arose in the antitrust field, courts have broadened it to “protect First Amendment petitioning of the government from claims brought under Federal and State law.”

Next, the court rejected plaintiff’s claim that defendant’s “counterclaims were salacious and prurient and therefore retaliatory”, finding that “[t]he fact that Fox expounded on an allegation about sexual harassment that Pozner made in his complaint as part of its defense does not eliminate the immunity afforded by the Noerr-Pennington doctrine. Nor does it constitute retaliation.”

And while plaintiff argued that cases from the Southern District of New York hold that certain counterclaims can be actionable as retaliatory, those cases “do not address the Noerr-Pennington doctrine, fail to take precedence over federal law and hence do not bar the doctrine’s application here.”