BE&K Constr. Co. v. NLRB, 536 U.S. 516, 11 (2002)

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Opinion of the Court

genuine petitioning is immune from antitrust liability, sham petitioning is not.

In Professional Real Estate Investors, we adopted a two-part definition of sham antitrust litigation: first, it "must be objectively baseless in the sense that no reasonable litigant could realistically expect success on the merits"; second, the litigant's subjective motivation must "concea[l] an attempt to interfere directly with the business relationships of a competitor . . . through the use [of] the governmental process—as opposed to the outcome of that process—as an anticompetitive weapon." 508 U. S., at 60-61 (internal quotation marks omitted; emphasis in original). For a suit to violate the antitrust laws, then, it must be a sham both objectively and subjectively.

This case raises the same underlying issue of when litigation may be found to violate federal law, but this time with respect to the NLRA rather than the Sherman Act. Recognizing this underlying connection, we previously decided whether the Board could enjoin state court lawsuits by analogizing to the antitrust context. In Bill Johnson's, a restaurant owner had filed a state court lawsuit against individuals who picketed its restaurant after a waitress was fired. 461 U. S., at 733-734. The owner alleged that the picketing was harassing and dangerous and that a leaflet distributed by the picketers was libelous. Id., at 734. The waitress filed a charge with the Board claiming the suit had been filed in retaliation for participation in protected activities. Id., at 735. The Administrative Law Judge (ALJ) decided that the owner's suit lacked a reasonable basis and was intended to penalize protected activity based on his assessment of the evidence and its credibility. Id., at 736, 744. The Board upheld this determination and ordered the owner to withdraw its suit and pay the defendants' legal expenses. Id., at 737. The Court of Appeals enforced the order. Ibid.

We vacated the judgment, however, holding that First Amendment and federalism concerns prevented "[t]he filing

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