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Commercial Division Applies Noerr-Pennington Doctrine to Dismiss Claim for Unlawful Retaliation

In Pozner v. Fox Broadcasting Co., Justice Saliann Scarpulla of the Commercial Division dismissed plaintiff Cliff Pozner’s (“Pozner”) retaliation claim, which alleged that counterclaims filed against him by defendant Fox Broadcasting Company’s (“Fox”) constituted unlawful retaliation in violation of the New York Executive Law and the New York City Administrative Code.[1]  The Court’s decision addressed an issue of first impression in New York: i.e., whether the Noerr-Pennington doctrine—which holds “‘that parties may not be subjected to liability for petitioning the government’ such as by filing litigation”—may be applied in the context of unlawful retaliation claims.[2]

Factual Background

Pozner was formerly Executive Vice President at Fox.  His employment was terminated following an investigation into allegations of sexual harassment.[3]  After the termination of his employment, Pozner filed a complaint against Fox alleging breach of his employment contract and religious discrimination.[4]  In June 2017, Fox answered the complaint and filed counterclaims for breach of contract and breach of fiduciary duty.[5]  The Court held that Fox adequately pled its counterclaim for breach of contract but dismissed the counterclaim for breach of fiduciary duty.[6]

Following the Court’s decision on Pozner’s motion to dismiss Fox’s counterclaims, Pozner filed an amended complaint which added a third cause of action, asserting that Fox’s counterclaims against Pozner constituted unlawful retaliation.[7]  Fox moved to dismiss the retaliation claim under the Noerr-Pennington doctrine.[8]

Justice Scarpulla’s Opinion

The Court began its analysis of Fox’s motion to dismiss with a discussion of the Noerr-Pennington doctrine.  Under this doctrine, parties may not be subjected to liability for petitioning the government, including by filing litigation and seeking relief from a court.[9]  This immunity provided by the Noerr-Pennington doctrine applies “so long as the litigation is not a sham.”[10]  Sham litigation has been defined as litigation that is both objectively baseless and brought in bad faith.[11]

Applying the Noerr-Pennington doctrine, Justice Scarpulla held that Fox’s counterclaim constituted a petition seeking relief from the Court, and therefore the counterclaim could not serve as the basis for Pozner’s retaliation claim.[12]  In reaching its decision, the Court noted that the doctrine originated in the context of antitrust cases, and that courts “have expanded it to protect First Amendment petitioning of the government from claims brought under Federal and State law.”[13]  Although there were no New York cases either applying or prohibiting the Noerr-Pennington doctrine in the context of retaliation claims, the Commercial Division reasoned that the doctrine applied to Fox’s claim and thus barred Pozner’s retaliation claim given other courts’ interpretations that the doctrine “applies equally in all contexts.”[14]  Moreover, the Court ruled that the exception for “sham litigation” did not apply because the Court had previously held that Fox adequately pled its breach of contract counterclaim.[15] 


Justice Scarpulla ruled that the Noerr-Pennington doctrine barred a retaliation claim based on allegations that counterclaims were brought solely as retaliation for the filing of plaintiff’s complaint.  Although no New York cases had previously applied the Noerr-Pennington doctrine in the context of retaliation claims, the Court held that the doctrine applied to such claims and dismissed the retaliation claim in light of other courts’ recognition of the wider applicability of this doctrine.  The Court also concluded that the exception to the doctrine for objectively baseless litigation did not apply to a counterclaim that the Court previously held was adequately pled.  There is thus now precedent in New York that the Noerr-Pennington doctrine can be applied to a wide range of litigation claims.

By Peter Y. Shakro and Stephen P. Younger

[1] Pozner v. Fox Broad. Co., No. 652096/2017, 2019 BL 448904 (Sup. Ct. Nov. 15, 2019).

[2] Id. at *2 (quoting I.G. Second Generation Partners, L.P. v. Duane Reade, 17 A.D.3d 206, 208 (1st Dep’t 2005)).

[3] Pozner, 2019 BL 448904, at *1.

[4] Id. at *1-2.

[5] Id. at *2.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Id. (quoting Matsushita Elecs. Corp. v. Loral Corp., 974 F. Supp. 345, 355 (S.D.N.Y. 1997)).

[11] Id.

[12] Pozner, 2019 BL 448904, at *2.

[13] Id. at *3 (quoting Alfred Weissman Real Estate, Inc. v. Big V Supermarkets, Inc., 268 A.D.2d 101, 107 (2d Dep’t 2000)).

[14] Pozner, 2019 BL 448904, at *3 (quoting White v. Lee, 227 F.3d 1214, 1231 (9th Cir. 2000)).

[15] Pozner, 2019 BL 448904, at *2.