Legal Definitions - sham petitioning

Sham petitioning refers to the act of using governmental or legal processes, such as filing lawsuits, administrative complaints, or lobbying efforts, not with a genuine intent to achieve a favorable outcome from the government, but rather as a tactic to directly interfere with a competitor's business or to impose costs on them. The petitions or complaints are objectively baseless and are merely a pretense to abuse the process itself.

This concept is often discussed in relation to the Noerr-Pennington doctrine, which generally protects the right to petition the government, even if the petition negatively impacts a competitor. However, this protection does not extend to "sham" activities, where the petitioning is a mere cover for an attempt to directly harm a competitor through the process itself, rather than through the legitimate outcome of that process.

Here are some examples illustrating sham petitioning:

• Example 1: Delaying a Competitor's Project

  A large real estate developer is about to break ground on a major commercial complex after securing all necessary permits. A rival developer, seeing the project as a threat to their own market share, instructs their legal team to file a series of frivolous environmental lawsuits and administrative appeals against the permits. These legal challenges are objectively baseless, lacking any genuine legal or factual merit, and are filed solely to delay the rival's project, increase their legal costs, and potentially force them to abandon the development, rather than to genuinely address environmental concerns.

  This illustrates sham petitioning because the rival developer is using the legal system (filing lawsuits and appeals) not to genuinely seek a legal remedy or uphold environmental standards, but as a pretext to directly interfere with and harm a competitor's business operations by imposing delays and expenses.

• Example 2: Blocking a Product Launch

  A biotechnology company is on the verge of receiving final regulatory approval for a groundbreaking new medical device. A competing company, which manufactures a similar but less advanced device, files multiple, unsubstantiated complaints with the regulatory agency, alleging minor, unproven safety defects and procedural irregularities in the approval process. The competitor knows these complaints are without merit and will ultimately be dismissed, but their intent is to delay the new device's market entry, allowing them to maintain their market dominance for a longer period.

  This demonstrates sham petitioning because the competitor is using the regulatory complaint process not to genuinely ensure public safety or regulatory compliance, but as a baseless tactic to obstruct a rival's product launch and gain an unfair competitive advantage.

• Example 3: Obstructing a Business Expansion

  A popular local restaurant applies for a zoning variance to expand its outdoor dining area, a move supported by many residents. A competing restaurant owner, fearing a loss of customers, mobilizes a group of associates to file numerous, identical, and factually incorrect objections with the local zoning board. These objections are not based on legitimate zoning concerns or community impact, but are designed purely to overwhelm the board, delay the approval process, and ultimately prevent the competitor's expansion, thereby protecting their own business interests.

  This is an example of sham petitioning because the competing restaurant owner is abusing the zoning appeal process by submitting baseless objections, not to genuinely influence zoning policy or protect the community, but solely to harass and obstruct a competitor's legitimate business expansion.