KRAVITCH, Circuit Judge:
McGuire Oil Company, Delta Oil Company
The district court granted summary judgment in favor of Mapco on plaintiffs' AMFMA claim and summary judgment in favor of the plaintiffs on Mapco's counterclaim. 763 F.Supp. 1103 (S.D.Ala.1991). The court also denied plaintiffs' motion for sanctions under Rule 11 of the Federal Rules of Civil Procedure. Plaintiffs appeal the district court's summary judgment on their AMFMA claim and the court's denial of their Rule 11 motion. Mapco appeals the court's grant of summary judgment on its counterclaim. We affirm the district court's grant of summary judgment on Mapco's counterclaim, as well as the court's denial of plaintiffs' motion for Rule 11 sanctions. We certify to the Alabama Supreme Court questions of law determinative of plaintiffs' claims under the AMFMA.
Appellants are petroleum wholesalers or "jobbers" engaged in the wholesale and retail sale of branded gasoline. Mapco Petroleum, a wholly owned subsidiary of Mapco, Inc., is a Delaware corporation, qualified to do business in Alabama, that is engaged in the retail sale of unbranded petroleum products in Alabama. At all times relevant to this dispute, Mapco sold its products at three or four retail locations in the Mobile, Alabama area. It is unclear how many retail gasoline outlets exist in Mobile.
On May 8, 1984, the Alabama Legislature passed the AMFMA, section 6 of which states:
Ala.Code § 8-22-6. Subsequent to the enactment of the AMFMA, the plaintiffs, who, as members of the Alabama Oilmen's Association ("AOA"), were instrumental in
Mapco in particular became the object of plaintiffs' efforts. As alleged by plaintiffs and admitted by Mapco, Mapco was selling gas one to two cents below cost at its Old Shell Road and St. Stephen's Road retail outlets during January, 1985. As alleged by Mapco and admitted by plaintiffs, plaintiffs initiated a series of contacts with Mapco in an effort to get it to cease its below-cost pricing.
For example, Angie Sullivan, a pricing coordinator for Mapco, testified that she received telephone calls from James McGuire of appellant McGuire Oil alerting Sullivan to Mapco's possible violation of the AMFMA, requesting Mapco to raise prices and threatening litigation if Mapco did not comply. Sullivan Depo., Folder 2, at 128-131. Larry Hill, area manager for Mapco, testified that he received similar communications, Hill Depo., Folder 4, at 48-51, 84-87, as did Joe Lassiter, the Store Manager of Mapco's Old Shell Road location. Id. Plaintiffs' attorney wrote James Murl Kennamore, Mapco's General Manager, concerning Mapco's below-cost pricing. Kennamore Depo., Folder 7, at 107-109. Plaintiffs also contacted Mapco and other suspected below-cost sellers of gas through the AOA, which demanded that those sellers increase their prices or face litigation. Boom Depo., Folder 2, at 29.
II. COURSE OF PROCEEDINGS
Having failed to convince Mapco to increase its prices, plaintiffs filed suit in state court on March 14, 1985, alleging Mapco's violation of section 6 of the AMFMA and seeking injunctive relief, compensatory damages
The parties agreed to stay the proceedings pending determination by the Alabama Supreme Court of the constitutionality of the AMFMA under federal and state law. That court upheld the AMFMA's constitutionality in State ex rel. Galanos v. Mapco Petroleum Co., 519 So.2d 1275 (Ala.1987).
On or about July 1988, the parties entered into a stipulation whereby Mapco agreed to raise its gas prices pending resolution of the lawsuit. In the six months following execution of the stipulation, Mapco lost a considerable amount of its sales volume.
On July 29, 1988, Mapco counterclaimed against the plaintiffs, seeking $4 million in compensatory damages and $40 million in punitive damages. Mapco contended that plaintiffs, by giving Mapco a "Hobson's choice" between raising its prices and enduring vexatious and costly litigation, had conspired to fix gas prices in violation of section 2 of the Sherman Anti-Trust Act, the Robinson-Patman Act, the AUTPA and the AMFMA.
Plaintiffs moved for summary judgment against Mapco on the latter's counterclaim, arguing that Mapco lacked standing to bring claims under the Sherman Act, the Robinson-Patman Act and the AMFMA; that the AUTPA did not confer a private right of action; and that Mapco's federal antitrust counterclaims were barred by the Noerr-Pennington doctrine. Plaintiffs also moved for sanctions against Mapco under Fed.R.Civ.P. 11 for Mapco's failure to make a reasonable inquiry into the facts or the law before filing its counterclaim.
In an order dated February 13, 1991, the district court granted summary judgment in favor of Mapco on plaintiffs' AMFMA claim, and granted summary judgment in favor of the plaintiffs on Mapco's Sherman Act and AMFMA counterclaims. McGuire Oil Company, et al. v. Mapco Petroleum, Inc., 763 F.Supp. 1103 (S.D.Ala.1991).
Regarding plaintiffs' AMFMA claim, the court rejected Mapco's argument that the plaintiffs failed to show that Mapco acted with the requisite intent to injure competition, concluding that intent to injure competition was not an element of an AMFMA plaintiffs' case. Id. at 1106. The court, however, held that the AMFMA requires plaintiffs to prove "injury to competition," not simply "injury to competitors," and that, given Mapco's insignificant market share in the Mobile area, plaintiffs had failed to prove that Mapco's below-cost pricing had injured competition. Id. at 1107-08. The court did not reach the issue of whether Mapco's actions were protected under the AMFMA's "meeting competition" exception.
Regarding Mapco's counterclaim, the court held that Mapco lacked standing under the Sherman Act in light of its failure to establish antitrust injury, as that term has been interpreted by the United States Supreme Court in Atlantic Richfield Co. v. U.S.A. Petroleum Co., 495 U.S. 328, 110 S.Ct. 1884, 109 L.Ed.2d 333 (1990) ("ARCO"). Id. at 1108-09. The court further concluded that Mapco failed to establish a causal relationship between its injuries and plaintiffs' alleged AMFMA violations sufficient to give Mapco standing under that statute. The court did not address whether plaintiffs were immune from Mapco's federal antitrust counterclaims under the Noerr-Pennington doctrine.
In a supplemental order dated March 5, 1991, the court also granted summary judgment against Mapco on its Robinson-Patman Act claim and its claims under the AUTPA. The court held that Mapco lacked standing under the Robinson-Patman Act for the same reasons it lacked standing under the Sherman Act. Id. at 1109-1110. The court also concluded that the AUTPA did not provide for a private right of action, thereby barring Mapco's claim under that statute. Id. at 1110. Finally, in an order dated March 8, 1991, the court denied plaintiffs' motion for Rule 11 sanctions against the defendant.
Plaintiffs appeal the district court's grant of summary judgment in favor of Mapco on plaintiffs' AMFMA claim. Plaintiffs argue that the district court erred by imposing the legal standards applicable to federal antitrust legislation on the AMFMA, which, plaintiffs contend, was enacted to provide relief against certain pricing activities that could not be attacked under federal antitrust law. In particular, plaintiffs contend that the court erred in requiring plaintiffs to prove that Mapco's below-cost pricing had the effect of injuring competition; the AMFMA, plaintiffs argue, is unlike federal antitrust law, in that
Plaintiffs also appeal the court's denial of their motion for Rule 11 sanctions, arguing that Mapco brought its counterclaim without any basis in law or fact and without having inquired reasonably into the basis for such a claim.
Mapco appeals the district court's grant of summary judgment on its counterclaim, arguing that the United States Supreme Court's decision in ARCO applies only to antitrust defendants allegedly engaged in a vertical maximum price fixing conspiracy. Mapco argues that in this case, plaintiffs not only engaged in a horizontal conspiracy to fix minimum prices, but forced Mapco to adhere to those prices by threatening vexatious and retaliatory litigation. Thus, Mapco contends, it sustained antitrust injury under federal antitrust law
As noted supra, we certify to the Alabama Supreme Court questions of law determinative of plaintiffs' AMFMA claim. We affirm the district court's grant of summary judgment to plaintiffs on Mapco's counterclaim, and its denial of plaintiffs' motion for Rule 11 sanctions.
III. STANDARD OF REVIEW
We review de novo a district court's grant of summary judgment, Hoffman v. Allied Corp., 912 F.2d 1379, 1383 (11th Cir.1990), applying the same legal standards that bound the district court. Earley v. Champion Intern. Corp., 907 F.2d 1077, 1080 (11th Cir.1990). We must resolve in favor of the non-moving party all genuine factual disputes. Barnes v. Southwest Forest Industries, Inc., 814 F.2d 607, 609 (11th Cir.1987).
IV. MAPCO'S COUNTERCLAIM
In essence, Mapco claims that the plaintiffs engaged in a concerted effort to establish minimum prices for gasoline in the Mobile area, and that this effort manifested itself in threats and coercion of those independent retailers, like Mapco, who sought to preserve their market share by pricing gas one or two cents below major brand gas prices. Mapco claims that this effort constituted an anticompetitive price-fixing conspiracy in violation of the Sherman Act, the AMFMA and the AUTPA.
We affirm the district court's grant of summary judgment on Mapco's counterclaim. Mapco's claims under the Sherman Act are barred by the immunity granted plaintiffs under the Noerr-Pennington doctrine.
A. Mapco's Sherman Act Counterclaim
A private plaintiff proceeding under section 4 of the Clayton Act must prove (1) violation of the antitrust laws, (2) cognizable injury attributable to the violation, and (3) at least the approximate amount of the
Mapco alleges that plaintiffs' conduct satisfied the first prong of this requirement because they engaged in a concerted effort to force Mapco to raise its prices. It claims that plaintiffs, individually, jointly or through the umbrella organization of the AOA, contacted various Mapco representatives in an effort to get Mapco to raise its prices, threatening and ultimately initiating litigation under the AMFMA in response to Mapco's unwillingness to abide by plaintiffs' demands.
The allegations in Mapco's counterclaim reveal the degree to which plaintiffs' threats and ultimate initiation of litigation constituted the concerted action that Mapco viewed as violative of the Sherman Act. Paragraph seven of the counterclaim states that plaintiffs "have continuously since the enactment of [the AMFMA] conspired, contracted, formulated and implemented a scheme to control the competitive pricing of motor fuel in the State of Alabama through the use of veiled and unveiled threats of litigation under and pursuant to the provisions of the AMFMA." R3-68-¶ 7. Paragraph ten of the counterclaim reiterates that "the [plaintiffs] have sought to drive Mapco out of the business of selling gasoline at retail in the State of Alabama through massive and concerted threats of litigation and institution of litigation under the pretext of the enforcing of the provisions of the AMFMA." Id. at ¶ 10. See also id. at ¶¶ 11, 14, 15 and 17. In essence, therefore, Mapco claims that plaintiffs violated the Sherman Act by engaging in concerted efforts to threaten and initiate litigation against Mapco under the AMFMA for the anti-competitive purpose of forcing Mapco to raise its prices. We assume arguendo that plaintiffs' actions did indeed amount to a horizontal price-fixing conspiracy, which in general is a per se offense under the Sherman Act. See NCAA v. Board of Regents of University of Oklahoma, 468 U.S. 85, 100, 104 S.Ct. 2948, 2959, 82 L.Ed.2d 70 (1984) (horizontal price fixing is "perhaps the paradigm of an unreasonable restraint of trade").
The Noerr-Pennington Doctrine
In Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961), and United Mine Workers v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965), the Supreme Court determined that "[j]oint efforts to influence public officials do not violate the antitrust laws even though intended to eliminate competition." Pennington, 381 U.S. at 670, 85 S.Ct. at 1593. Under the Noerr-Pennington doctrine, therefore, "the federal anti-trust laws do not regulate the conduct of private individuals in seeking anti-competitive action from the government." City of Columbia v. Omni Outdoor Advertising, Inc., ___ U.S. ___, ___, 111 S.Ct. 1344, 1354, 113 L.Ed.2d 382 (1991). Concerted action that would ordinarily constitute a conspiracy violative of the Sherman Act does not do so if such action is directed toward influencing governmental bodies. Coastal States Marketing, Inc. v. Hunt, 694 F.2d 1358, 1366 (5th Cir.1983) ("the Sherman Act, as interpreted by Noerr, simply does not penalize as an anti-trust violation the petitioning of a government agency").
The source of the Noerr-Pennington doctrine is mixed. On the one hand, the immunity from antitrust liability granted to petitioners of governmental bodies stems from the judicial recognition that "the antitrust laws, tailored as they are for the business world, are not at all appropriate for application in the political arena." City of Columbia v. Omni Outdoor Advertising, Inc., ___ U.S. at ___, 111 S.Ct. at 1354 (quoting Noerr, 365 U.S. at 141, 81 S.Ct. at 531). Thus, Noerr-Pennington immunity can be said to spring directly from a construction of the Sherman Act. See Coastal States Marketing, 694 F.2d at 1364-1365. On the other hand, the Court in California Motor Transport recognized the First Amendment underpinnings of the doctrine, stating that:
404 U.S. at 510-511, 92 S.Ct. at 612. See also Feminist Women's Health Center, Inc. v. Mohammad, 586 F.2d 530, 542 (5th Cir.), cert. denied, 444 U.S. 924, 100 S.Ct. 262, 62 L.Ed.2d 180 (1979) ("[T]he First Amendment right of competitors to join in petitioning courts and administrative bodies entails the right to band together for purposes of supporting litigation.").
On its face, Mapco's Sherman Act counterclaim appears barred by the Noerr-Pennington doctrine: the raison d'etre of plaintiffs' alleged conspiracy was to threaten and ultimately initiate litigation against Mapco under the AMFMA in an attempt to get Mapco to cease its below-cost sales of gas. Mapco, however, contends that the Noerr-Pennington doctrine does not apply to plaintiffs' actions because not only did plaintiffs file a lawsuit against Mapco, they also "used the threat of litigation repeatedly with a number of competitors as a method of coercing anti-competitive pricing." Mapco's Reply Brief at 18. Thus, Mapco contends that plaintiffs are not entitled to Noerr-Pennington immunity because (a) they acted with an anti-competitive purpose and (b) they prefaced their initiation of litigation against Mapco with threats of litigation, and have threatened other competitors with similar litigation.
The "Sham" Exception to Noerr-Pennington Immunity
Courts have developed an exception to Noerr-Pennington immunity to address "situations in which a publicity campaign, ostensibly directed toward influencing government action, is a mere sham to cover what is actually nothing more than an attempt to interfere directly with the business relationships of a competitor." Noerr, 365 U.S. at 144, 81 S.Ct. at 1533. This so-called "sham" exception subjects to anti-trust liability "a defendant whose activities are `not genuinely aimed at procuring favorable government action' at all, Allied Tube & Conduit Corp. v. Indian Head, Inc., 486 U.S. 492, 500 n. 4, 108 S.Ct. 1931, 1937, n. 4, 100 L.Ed.2d 497 (1988), not one `who "genuinely seeks to achieve his governmental result, but does so through improper means,"' Id. at 508, n. 10, 108 S.Ct. at 1941, n. 10 [citations omitted]." City of Columbia v. Omni Outdoor Advertising, Inc., ___ U.S. at ___, 111 S.Ct. at 1354. See also Coastal States Marketing, 694 F.2d at 1372 ("[L]itigant should enjoy immunity from the antitrust laws so long as a genuine desire for judicial relief is a significant motivating factor underlying the suit"); Video Intern. Production v. Warner Amex Cable Com., 858 F.2d 1075, 1082 (5th Cir.1988) (noting that sham exception "comes into play where the party petitioning the government is not at all serious about the object of that petition,
Mapco's arguments against attaching Noerr-Pennington immunity to plaintiffs' actions do not justify application of the "sham" exception. Regarding Mapco's claim that plaintiffs acted with an anti-competitive purpose, it is axiomatic that actions taken with an anti-competitive purpose or intent remain insulated from antitrust liability under the Noerr-Pennington doctrine. Pennington, 381 U.S. at 670, 85 S.Ct. at 1593. See St. Joseph's Hospital v. Hospital Corp. of America, 795 F.2d 948, 955 (11th Cir.1986); Coastal States Marketing, 694 F.2d at 1363. Regarding Mapco's claim that plaintiffs' concerted and repeated threats of litigation constituted a violation of the antitrust laws, it is clear that such threats, no less than the actual initiation of litigation, do not violate the Sherman Act:
Coastal States Marketing, 694 F.2d at 1367. St. Joseph's Hosp., 795 F.2d at 955; P. Areeda and H. Hovenkamp, supra, at § 203.5. Indeed, there is no indication from the record that plaintiffs did not bring their lawsuit against Mapco to win, or that their goal was anything but a favorable decision from the courts. See City of Columbia, ___ U.S. at ___, 111 S.Ct. at 1354.
Mapco all but concedes that the plaintiffs' lawsuit cannot be deemed a sham.
The Seventh Circuit held that the award of trebled litigation costs incurred in defending a lawsuit designed to enforce a price-fixing conspiracy did not violate the Noerr-Pennington doctrine. Mapco contends that Premier is analogous to this case. We disagree. In Premier, the court of appeals observed that the institution of state court litigation against the Sherman Act plaintiff (the recalcitrant independent electrical contractor) could furnish the source of the antitrust injury suffered by the contractor, even if it could not provide a basis for a Sherman Act violation under the Noerr-Pennington doctrine. Premier Elec. Const. Co., 814 F.2d at 373. The court observed that the contract between the union and the trade association, which the trade association sought to enforce by bringing suit in state court, furnished the Sherman Act violation. Id. at 372.
In this case, conversely, Mapco alleges that the plaintiffs' concerted threats and institution of litigation themselves violated the Sherman Act, as well as providing the source of the antitrust injury. Indeed, Mapco does not allege any facts independent of plaintiffs' pre-litigative and litigative activities to establish that a conspiracy in violation of the Sherman Act took place. Unlike Premier, in which the state court lawsuits brought by the trade association were intended to enforce a contract that was unlawful per se under the Sherman Act, there is no predicate act in this case that constitutes an independent violation of the antitrust laws; rather, the AMFMA — a lawfully enacted statute — furnished the basis for plaintiffs' litigative efforts. Although adherence to the Seventh Circuit's opinion in Premier might permit us to use the costs incurred by Mapco in defense of plaintiffs' AMFMA claim as a measure of their antitrust injury,
Thus, we hold that neither the "sham" exception to the Noerr-Pennington doctrine nor the Seventh Circuit's analysis in Premier applies in this case to strip the plaintiffs of immunity from Sherman Act liability under that doctrine. Accordingly, we affirm the district court's grant of summary judgment to the plaintiffs on that issue.
B. Mapco's AUTPA Counterclaim
Mapco's AUTPA counterclaim is nothing more than a recital of the allegations contained in its federal antitrust law counterclaim. R3-68-¶¶ 24, 25. As noted supra, the Noerr-Pennington doctrine rests in large part on the general First Amendment guarantees of freedom to petition and freedom of association. Bill Johnson's Restaurants, Inc. v. NLRB, 461 U.S. 731, 741, 103 S.Ct. 2161, 2169, 76 L.Ed.2d 277 (1983) ("the right of access to the courts is an aspect of the First Amendment right to petition the Government for redress of grievances"); California Motor Transport, 404 U.S. at 510-511, 92 S.Ct. at 612; Feminist Women's Health Center, 586 F.2d at 542. See also NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963). We will not construe the AUTPA to treat as unfair trade practices concerted activity that is constitutionally protected. Dale Baker Oldsmobile v. Fiat Motors of North America, 794 F.2d 213, 221 (6th Cir.1986) (noting that state statute that has not been authoritatively construed by state court should be construed by federal court in manner that will avoid constitutional questions). We therefore affirm the district court's grant of summary judgment on Mapco's counterclaim under AUTPA.
C. Mapco's Claim Under the AMFMA
We also affirm the district court's grant of summary judgment on Mapco's counterclaim under the AMFMA. In its counterclaim, Mapco specifically alleged that plaintiffs violated section 6 of the AMFMA by "sell[ing] motor fuel of particular grade to themselves and to their affiliated stations at prices which are substantially lower than [plaintiffs] charge other persons on the same day and on the same level of distribution." The district court held that Mapco failed to establish a causal nexus between plaintiffs' alleged violations of the AMFMA and Mapco's alleged injury. We agree.
As the district court noted, section 17 of the AMFMA states that "any persons injured as a result of an act or practice which violates this chapter may bring a civil action for appropriate relief. ..." Ala.Code 8-22-17.
V. PLAINTIFFS' MOTION FOR RULE 11 SANCTIONS
Plaintiffs appeal the district court's denial of their motion for Rule 11 sanctions relating to Mapco's filing of its counterclaim. We review the district court's denial of plaintiffs' motion for abuse of discretion. Cooter & Gell v. Hartmax Corp., 496 U.S. 384, ___, 110 S.Ct. 2447, 2461, 110 L.Ed.2d 359 (1990).
This court considered the standard by which a district court should assess a motion for Rule 11 sanctions in Pelletier v. Zweifel, 921 F.2d 1465, 1514 n. 88 (11th Cir.1991), in which we stated:
In this case, the district court concluded that Mapco's counterclaims were reasonable under the circumstances, given that Mapco's claims, while meritless, were not frivolous, and given the complexity of the facts and legal issues involved. R12-215-2. We agree.
Plaintiffs contend that Mapco's counterclaim makes no economic sense, in that Mapco could not have been injured by plaintiffs' conspiracy to raise gasoline prices. In essence, however, Mapco conceded that a horizontal minimum price-fixing conspiracy, standing alone, would not injure them in a manner for which the federal antitrust laws (or the AMFMA) provide redress. Mapco contended on appeal, however, that "[p]laintiffs [not only] engaged in a price-fixing conspiracy, but also ... used anti-competitive means, e.g. vexatious and retaliatory litigation designed solely to coerce, to obtain an increase in retail gas prices. The purpose and effect of this conspiracy was to force Mapco to abandon its policy of pricing a penny below its major branded competitors. For this reason, Mapco had no ability to benefit from its competitors' conspiracy by charging a lower price." Brief of Mapco at 38. Thus, the linchpin of Mapco's argument that it suffered antitrust injury is that it was forced to endure the expense of vexatious litigation, and that it was therefore forced to capitulate to the plaintiffs' price fixing conspiracy and to abandon, to its financial detriment, its traditional pricing practices of selling gas one to two cents below its branded competition. Mapco further alleges that the plaintiffs were able to raise gasoline prices after Mapco began to lose revenues.
In making this argument, Mapco attempted to rely on the Seventh Circuit's decision in Premier, supra, which, it argued, carved out an exception to Noerr-Pennington immunity in the litigation arena. Although we have held that this position
Assuming arguendo that Mapco's counterclaims were frivolous, the district court did not abuse its discretion in denying plaintiffs' motion. As this court noted in Pelletier, supra, the question whether the person who signed the pleadings should have been aware that they were frivolous must be answered with recourse to the type of case at issue. The level of inquiry necessary in a given case depends on the complexity of the issues and the need for and availability of discovery. This case presents issues of great complexity and involved an acrimonious struggle between the parties for access to the information relevant to each party's claims. We cannot say that Mapco failed to make a reasonable inquiry into the factual and legal basis of its counterclaims in light of the obstacles it faced. We therefore affirm the district court's denial of plaintiffs' motion for sanctions.
VI. PLAINTIFFS' AMFMA CLAIM
It appears to the United States Court of Appeals for the Eleventh Circuit that this issue involves questions of Alabama law that are dispositive of the cause, but unanswered by controlling precedent of the Supreme Court of Alabama. We therefore certify the following questions for resolution by the highest court of Alabama:
We do not intend the particular phrasing of these questions to limit the Supreme Court of Alabama in its consideration of problems raised by plaintiffs' AMFMA claim. In a similar vein, our recital of the contentions of the parties is intended to illustrate the nature of the issues and is not intended to substitute for the full statement of contentions by counsel. To assist consideration of the issues, the briefs of the parties and the entire record shall be transmitted to the Supreme Court of Alabama.
For the foregoing reasons, we AFFIRM the district court's grant of summary judgment on Mapco's counterclaims, as well as the court's denial of plaintiffs' motion for summary judgment. We CERTIFY the issue of plaintiffs' claim under the AMFMA to the Alabama Supreme Court for resolution.
Columbia Pictures, 944 F.2d at 1532. In this case, Mapco has presented no facts to suggest that the plaintiffs' lawsuit was brought as part of an anticompetitive plan external to the underlying litigation, and therefore has failed to satisfy the second prong of the Ninth Circuit's test. See supra at 1557-1558, 1559; infra at 1562. Mapco has also failed to satisfy the first prong of that test, insofar as the plaintiffs' AMFMA claims, even if ultimately unsuccessful, do not lack a reasonable basis in fact or law. See Opdyke Inv. Co. v. City of Detroit, 883 F.2d 1265, 1273 (6th Cir.1989) (unsuccessful lawsuit not a sham where the trial court did not treat the theory as frivolous and the antitrust plaintiffs did not contend that the theory of the underlying case was so farfetched as to warrant the imposition of sanctions against the attorneys who brought it.)
Even under the subjective standard rejected by the Ninth Circuit, Mapco cannot prove that the plaintiffs' activity in this case falls within the "sham" exception. Although Mapco alleged in its counterclaim that "[plaintiffs] have instituted litigation against [Mapco] not to secure appropriate judicial relief but, rather, to force [Mapco] to increase the price at which it sells gasoline ...", R3-68-¶ 14, Mapco has failed to sustain its burden on summary judgment of presenting evidence that supports these allegations of bad faith. There is simply no evidence in the record to suggest that the plaintiffs did not honestly believe that their claims under the AMFMA were meritorious. Thus, regardless of the disposition of Columbia Pictures in the Supreme Court, the "sham" exception to Noerr-Pennington immunity does not apply in this case.