BE&K Constr. Co. v. NLRB, 536 U.S. 516, 13 (2002)

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Opinion of the Court

Bill Johnson's, however, the issue before the Court was whether the Board could enjoin an ongoing state lawsuit without finding that the suit lacked a reasonable basis in law or fact. Id., at 733. To resolve that issue, we had no actual need to decide whether the Board could declare unlawful reasonably based suits that were ultimately unsuccessful. Indeed, the Board had yet to declare such a suit unlawful: It had attempted to enjoin an uncompleted suit that it had declared baseless. Id., at 736-737. Nor did we have occasion to consider the precise scope of the term "retaliation." See infra, at 533, 537.

Moreover, although our statements regarding completed litigation were intended to guide further proceedings, we did not expressly order the Board to adhere to its prior finding of unlawfulness under the standard we stated. See 461 U. S., at 749-750, n. 15 ("[O]n remand the Board may reinstate its finding that petitioner acted unlawfully . . . if the Board adheres to its previous finding that the suit was filed for a retaliatory purpose" (emphasis added)). Thus, exercising our "customary refusal to be bound by dicta," U. S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U. S. 18, 24 (1994), we turn to the question presented.


Because of its objective component, the sham litigation standard in Professional Real Estate Investors protects reasonably based petitioning from antitrust liability. Because of its subjective component, it also protects petitioning that is unmotivated by anticompetitive intent, whether it is reasonably based or not. The Board admits such broad immunity is justified in the antitrust context because it properly "balances the risk of anticompetitive lawsuits against the chilling effect" on First Amendment petitioning that might be caused by "the treble-damages remedy and other distinct features of antitrust litigation," such as the fact that antitrust claims may be privately initiated and may impose high

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