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Imagine that two companies, Stephenson and Cushing, dominate the market for a certain drug.' A new company, Flanigan, hopes soon to introduce a generic version of the drug in the United States. First, however, Flanigan must complete the Food and Drug Administration's testing and approval process. Stephenson and Cushing know that the generic drug stands to hurt their profits, and they seek to delay, or to prevent altogether, Flanigan's entry into the market. They therefore agree to file complaints with the FDA claiming fraudulently that Flanigan's product is unsafe, that its manufacturing process is unsound, and that the market should not allow in another player. Knowingly misrepresenting evidence requested by the FDA, Stephenson and Cushing successfully block Flanigan's approval. Flanigan, now shut out of the market, files a claim against Stephenson and Cushing for antitrust violations Under the antitrust laws, which are designed to prevent anticompetitive economic behavior, Stephenson and Cushing's actions would almost definitely be subject to liability. Stephenson and Cushing will, however, quickly resort to the Noerr-Pennington doctrine to avoid antitrust liability. Created by the Supreme Court in Eastern Railroad Presidents Conference v Noerr Motor Freight, Inc and United Mine

The Fraud Exception to the Noerr-Pennington Doctrine in Judicial and Administrative Proceedings