Cite as: 536 U. S. 516 (2002)
Opinion of Breyer, J.
(2001); Diamond Walnut Growers, Inc. v. NLRB, 53 F. 3d 1085, 1088 (CA9 1995); NLRB v. International Union of Operating Engineers, Local 520, AFL-CIO, 15 F. 3d 677, 679 (CA7 1994); Braun Elec. Co., 324 N. L. R. B. 1, 2 (1997); Summitville Tiles, 300 N. L. R. B. 64, 65, and n. 6 (1990); Machinists Lodge 91 (United Technologies), 298 N. L. R. B. 325, 326 (1990), enf'd, 934 F. 2d 1288 (CA2 1991). I can find no good reason to characterize the statements in Bill Johnson's as dicta—though I recognize that the Court's language so characterizing Bill Johnson's is itself dicta.
For another thing, I do not believe that this Court's antitrust precedent determines the outcome here. See Professional Real Estate, supra; Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U. S. 127 (1961). That precedent finds all but sham lawsuits exempt from the reach of the antitrust laws. Professional Real Estate, supra, at 60-61; Noerr, supra, at 144. It does not hold employers enjoy a similar exemption from the reach of the labor laws. And it should not do so, for antitrust law and labor law differ significantly in respect to their consequences, administration, scope, history, and purposes.
Certain differences, while minor, are worth noting given the Court's concern to avoid discouraging legitimate lawsuits. To apply antitrust law to a defendant's reasonably based but unsuccessful anticompetitive lawsuit, for example, threatens the defendant with treble damages—a considerable deterrent. See ante, at 528. To apply labor law to an employer's reasonably based but unsuccessful retaliatory lawsuit threatens the employer only with a shift in liability for attorney's fees. See ante, at 529. Similarly, to apply antitrust law to a defendant's reasonably based but unsuccessful anticompetitive lawsuit threatens the defendant with high court-defense costs against any and all who initiate suit. To apply labor law to an employer's reasonably based but unsuccessful retaliatory lawsuit threatens the employer only with the typically far lower costs of defending the charge
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