PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 12-1429

WAUGH CHAPEL SOUTH, LLC; WCS LLC; WCS PROPERTIES BUSINESS 

TRUST; ELG INGLEWOOD LLC,

Plaintiffs – Appellants,

v.

UNITED FOOD AND COMMERCIAL WORKERS UNION LOCAL 27; UNITED 

FOOD & COMMERCIAL WORKERS UNION, LOCAL 400; MID−ATLANTIC 

RETAIL FOOD INDUSTRY JOINT LABOR MANAGEMENT FUND,

Defendants – Appellees.

Appeal from the United States District Court for the District of

Maryland, at Baltimore. William D. Quarles, Jr., District 

Judge. (1:11-cv-00841-WDQ)

Argued: May 16, 2013 Decided: August 26, 2013

Before KING, DIAZ, and FLOYD, Circuit Judges.

Affirmed in part, vacated in part, and remanded by published

opinion. Judge Diaz wrote the opinion, in which Judge King and 

Judge Floyd joined.

ARGUED: Ira Lee Oring, FEDDER & GARTEN, PA, Baltimore, 

Maryland, for Appellants. Michael Timothy Anderson, MURPHY 

ANDERSON PLLC, Washington, D.C., for Appellee United Food and 

Commercial Workers Union Local 27; Sharon McNeilly Goodman, 

SLEVIN & HART, P.C., Washington, D.C., for Appellee Mid−Atlantic 

Retail Food Industry Joint Labor Management Fund. ON BRIEF:

Neil Dubovsky, FEDDER & GARTEN, PA, Baltimore, Maryland, for 
2

Appellants. Arlus J. Stephens, Lorrie E. Bradley, MURPHY 

ANDERSON PLLC, Washington, D.C., Joel A. Smith, David Gray 

Wright, KAHN, SMITH & COLLINS, P.A., Baltimore, Maryland, for 

Appellee UFCW Local 27; Carey R. Butsavage, John A. Durkalski, 

BUTSAVAGE & ASSOCIATES, P.C., Washington, D.C., for Appellee 

UFCW Local 400; Barry S. Slevin, Laura O. Aradi, SLEVIN & HART, 

P.C., Washington, D.C., for Appellee MRFI JLM Fund.
3

DIAZ, Circuit Judge:

Waugh Chapel South, LLC, WCS LLC, WCS Properties Business 

Trust (collectively “WCS”) sued the United Food and Commercial 

Workers Union Locals 27 and 400 (“UFCW”) and the Mid-Atlantic 

Retail Food Industry Joint Labor Management Fund (the “Fund”) 

under the Labor Management Relations Act (the “LMRA”), 29 U.S.C. 

§ 187, which provides a cause of action for victims of “unfair 

labor practices” as defined by the National Labor Relations Act 

(the “NLRA”), 29 U.S.C. § 158(b)(4). In its complaint,1 WCS 

alleges that the defendants orchestrated fourteen separate legal 

challenges against their commercial real estate project in order

to force WCS to terminate their relationship with a nonunionized supermarket--conduct that WCS alleged was an illicit 

“secondary boycott” under § 158(b)(4)(ii)(B).

The defendants moved to dismiss the complaint under the 

Noerr-Pennington2 doctrine, claiming that their First Amendment

right to petition the courts insulated their litigation activity 

from liability. Alternatively, the Fund moved to dismiss the 

 1 Plaintiff ELG Inglewood LLC (“ELG”) also sued the unions 

(Count II), alleging similar actions with respect to a related 

commercial real estate development. As discussed below, those 

claims were dismissed in part, and ELG has since waived decision 

on its appeal.

2 See United Mine Workers of Am. v. Pennington, 381 U.S. 657 

(1965); E. R.R. Presidents Conference v. Noerr Motor Freight, 

Inc., 365 U.S. 127 (1961).
4

complaint on the basis that it was not a “labor organization” 

under the NLRA. The district court agreed with both arguments 

and granted the motions to dismiss. This appeal followed. 

We agree with the district court that the Fund is not a 

“labor organization” under the NLRA, but conclude that the 

Noerr-Pennington doctrine does not (at least at this stage)

spare the remaining defendants from the allegations of the 

complaint. Although the courts are a medium by which citizens 

may exercise their First Amendment right to petition their 

government, the act of petitioning those courts may not serve as 

the means to achieve illegal ends. Cal. Motor Transp. Co. v. 

Trucking Unlimited, 404 U.S. 508, 515 (1972). Under this “sham 

litigation” exception to the Noerr-Pennington doctrine, we hold

that the pleadings and the concomitant record evidence in this 

case, if credited by a factfinder, are sufficient to show that 

the unions have abused their right to petition the courts beyond 

the point of constitutional protection. We therefore affirm in 

part, vacate in part, and remand to the district court for a 

determination of whether the unions waged a secondary boycott in 

the manner alleged in the complaint. 

I.

WCS and ELG are commercial real estate developers of two 

respective shopping centers in Anne Arundel County, Maryland: 
5

(1) the Village at Waugh Chapel South (“Waugh Chapel”); and (2) 

the Woodmore Towne Centre (“Woodmore”).3 Both companies planned 

to lease a storefront unit in each of their shopping centers to 

Wegmans Food Markets, Inc. Because the Wegmans supermarket 

chain does not employ organized labor, both projects were 

opposed by the defendant unions.

That opposition commenced in December 2006 when union 

leadership “set[] its sights on Wegmans” to mount an 

antagonistic campaign. J.A. 14. According to WCS, a union 

executive threatened WCS that if Wegmans did not unionize, “we 

will fight every project you develop where Wegmans is a tenant.” 

J.A. 18. The unions thereafter directed and funded a barrage of 

legal challenges at every stage of the projects’ development.

The first of these challenges occurred in August 2008, when 

UFCW Secretary-Treasurer George Murphy, represented by his 

attorney G. Macy Nelson, petitioned the Anne Arundel City 

Council (the “Council”) to revoke its decision to rezone the 

Waugh Chapel site from agricultural and residential to mixed-use 

commercial. WCS argued that Murphy lacked standing. The day 

 3 We recite the facts here as a prelude to deciding whether 

Noerr-Pennington warrants dismissal of the claims. For reasons 

described below, we treat the district court’s dismissal as a 

grant of summary judgment to the unions, and therefore consider 

all facts and reasonable inferences therefrom in the light most 

favorable to WCS, the non-moving party. Bonds v. Leavitt, 629 

F.3d 369, 380 (4th Cir. 2011). 
6

before a scheduled hearing on the merits, Murphy withdrew the 

petition and effectively ceded that he was not an “aggrieved 

party.” J.A. 441. 

After this petition failed, the union employed surrogate 

plaintiffs to pursue their legal challenges. For the next few 

years, Nelson would represent plaintiffs in sixteen other 

proceedings objecting to the development of the shopping 

centers, with the unions allegedly directing the litigation. 

Three of those challenges pertained to Woodmore and are not 

before us on appeal. We summarize the thirteen other challenges

to Waugh Chapel below.

• In December 2009, Paul Gilliam, Tracee Gilliam, and the 

environmental organization “Patuxent Riverkeeper” appealed

the Council’s decision to extend the time for WCS to post

fees and bonds for the project. WCS later posted the bonds 

and fees, mooting the case.

 

• In March 2010, Robert Smith and Madonna Brennan sued in 

Maryland state court to enjoin the Council’s approval of 

“Tax Increment Financing” (“TIF”) bonds, arguing that the 

Council did not conduct the requisite hearing. The Council 

did indeed fail to conduct a hearing, a failure it remedied 

by holding another hearing in May to reauthorize the TIF 

bonds. The case was then dismissed as moot.

 

• In June 2010, Smith and Brennan sued several defendants 

associated with the development project, including the 

Council and the Maryland Department of Energy (“MDE”), 

alleging the development had caused a nuisance. After a 

brief period of discovery in which Smith and Brennan 

proffered expert testimony, the parties moved for summary 

judgment. The state court found that there was no nuisance 

and dismissed the suit.

 

• In July 2010, Smith and Patuxent Riverkeeper filed a state 

court petition to vacate the MDE’s issuance of a mining 
7

permit to WCS. They filed an identical petition in August 

when the MDE issued an amended mining permit. The state 

court dismissed the July petition as based only on the 

“conjecture” and “speculation” of affidavits provided by 

plaintiffs. J.A. 196-97. After this dismissal, the 

plaintiffs voluntarily dismissed their August petition.

 

• From May to July 2011, Smith, Sandra Bowie, and Rosie 

Shorter appealed the grant of nine separate building and 

grading permits issued by the Council to WCS. They 

withdrew the appeals after WCS subpoenaed the unions’

financial records.

 

On March 31, 2011, WCS and ELG sued the unions under the 

LMRA, 29 U.S.C. § 187, alleging two counts of secondary boycott 

activity under § 158(b)(4)(ii)(B). Count 1 of the complaint 

pertained to the Waugh Chapel shopping center (WCS), while Count 

2 pertained to the Woodmore Towne Center (ELG). As to Count 1, 

the district court categorized the fourteen legal challenges 

directed against Waugh Chapel as follows: (1) one “successful 

petition” to appeal the issuance of the TIF bonds, J.A. 55, (2) 

two environmental suits dismissed for lack of standing, and from 

which the court would not infer baselessness, (3) ten grading 

and building “petitions withdrawn to avoid subpoenas” from which 

the court would not infer baselessness, J.A. 57, (4) one 

petition appealing the extension of time for WCS to post bonds 

and pay fees that became moot, and (5) one environmental suit

dismissed on the merits “after thoughtful consideration,” J.A. 

58. 
8

The Fund successfully moved to dismiss the complaint under 

Federal Rule of Civil Procedure 12(b)(6), arguing that it was 

not a “labor organization” subject to the LMRA. And because the 

district court concluded that none of the prior legal challenges

to the development of Waugh Chapel were objectively baseless, it 

dismissed Count I on Noerr-Pennington grounds. While the court 

allowed a portion of Count II to survive the unions’ motion to 

dismiss,4 a subsequent consent order also dismissed that count. 

II.

Before reaching the merits of this appeal, we first address

the procedural posture of this appeal and our jurisdiction to 

decide it. 

A.

Although the parties do not address it, we must determine

our appellate jurisdiction to entertain this appeal under 12 

U.S.C. § 1291, as “we are bound in all cases to ascertain our 

own appellate jurisdiction before reviewing a district court 

 4 As to ELG’s Count II, the district court concluded that 

one of the three underlying legal proceedings allegedly 

instigated by the unions was objectively baseless. Accordingly, 

the court granted the unions’ motion to dismiss as to two of the 

three alleged ‘sham’ suits, but allowed this one portion of 

Count II to survive. 
9

judgment.” Reid v. Angelone, 369 F.3d 363, 374 n.7 (4th Cir. 

2004).

“With few narrow exceptions,” including certain 

interlocutory and collateral orders, “our jurisdiction extends 

only to appeals from all final decisions of the district courts 

of the United States.” United States v. Myers, 593 F.3d 338, 

344 (4th Cir. 2010). In this case, after the district court 

dismissed WCS’s Count I and most of Count II with prejudice, ELG 

and the unions entered into a consent order, which purported to 

dismiss the remainder of Count II of the complaint “with 

prejudice, but without prejudice to refiling in any other 

proceeding.” J.A. 68. “This kind of split judgment ordinarily 

would not be considered ‘final’ and therefore appealable under 

28 U.S.C. § 1291 because it does not wind up the entire 

litigation in the district court.” Palka v. City of Chicago, 

662 F.3d 428, 433 (7th Cir. 2011); see also GO Computer, Inc. v. 

Microsoft Corp., 508 F.3d 170, 175-76 (4th Cir. 2007). 

Several of our sister circuits have held that litigants may 

not use voluntary dismissals as a subterfuge to manufacture 

jurisdiction for reviewing otherwise non-appealable, 

interlocutory orders. See Gannon Int’l, Ltd. v. Blocker, 684 

F.3d 785, 791-92 (8th Cir. 2012); Rabbi Jacob Joseph School v. 

Province of Mendoza, 425 F.3d 207, 210 (2d Cir. 2005); LNC 

Investments LLC v. Republic of Nicaragua, 396 F.3d 342, 346 (3d 
10

Cir. 2005); Marshall v. Kansas City S. Ry. Co., 378 F.3d 495, 

499-500 (5th Cir. 2004); James v. Price Stern Sloan, Inc., 283 

F.3d 1064, 1070 (9th Cir. 2002); CSX Transp., Inc. v. City of 

Garden City, 235 F.3d 1325, 1327 (11th Cir. 2000); ITOFCA, Inc. 

v. MegaTrans Logistics, Inc., 235 F.3d 360, 365 (7th Cir. 2000); 

Cook v. Rocky Mountain Bank Note Co., 974 F.2d 147, 148 (10th 

Cir. 1992). “Tolerance of that practice would violate the longrecognized policy against piecemeal appeals,” Rabbi Jacob Joseph 

School, 425 F.3d at 210, and would allow “an end-run around the 

final judgment rule.” Palmieri v. Defaria, 88 F.3d 136, 140 (2d 

Cir. 1996). 

ELG confesses that its Rule 41(a)(2) voluntary dismissal

was intended to allow appellate review of an otherwise 

interlocutory order. See Appellants’ Br. at 3 n.1 (“The claims 

relating to one of those actions was dismissed by the March 29, 

2012 Consent Order to allow for a final judgment.”). 

Under these circumstances, the question of remedy 

looms. In most cases, the proper remedy will be to 

reverse the Rule 41(a)(2) order and remand for 

completion of the case, without considering the merits 

of the earlier interlocutory order(s). We may also 

deem the ambiguous voluntary dismissal of Count [II]

to be with prejudice and go on to consider the appeal 

from the district court’s dismissal of all remaining 

claims. 

Madsen v. Audrain Health Care, Inc., 297 F.3d 694, 698 (8th Cir. 

2002) (internal quotations omitted). As did the Eighth Circuit, 

we choose the latter remedy here, as it polices the boundaries 
11

of our appellate jurisdiction without punishing the litigants in 

this appeal. Accordingly, we deem ELG’s voluntary dismissal of 

Count II to be with prejudice and proceed to consider WSC’s 

appeal of its remaining claims. 

B.

We next address a procedural wrinkle regarding the district 

court’s Rule 12(b)(6) dismissal. While we have since questioned 

our decision to do so, see IGEN Int’l, Inc. v. Roche Diagnostics 

GmbH, 335 F.3d 303, 311 (4th Cir. 2003), we have held that the 

Noerr-Pennington doctrine is an affirmative defense,5 N.C. Elec. 

Membership Corp. v. Carolina Power & Light, 666 F.2d 50, 52 (4th 

Cir. 1981). The district court, however, purported to 

adjudicate the merits of the unions’ Noerr-Pennington defense 

under Rule 12(b)(6), which is a procedure that tests only the 

sufficiency of a complaint and “cannot reach the merits of an 

 5 In IGEN Int’l, the defendant Roche Diagnostics GmbH failed 

to raise the Noerr-Pennington doctrine until after the district 

court denied its motion to dismiss. 335 F.3d at 308-10. On 

appeal, Roche challenged the district court’s decision to deny 

its Noerr-Pennington argument as untimely. While conceding that 

“[t]his circuit has previously characterized Noerr-Pennington as 

an affirmative defense,” the panel nonetheless stated in dicta 

that “Roche was not required to plead [Noerr-Pennington] as an 

affirmative defense.” Id. at 311. 

We, however, remain bound by our earlier precedent that the 

Noerr-Pennington doctrine is an affirmative defense. See

McMellon v. United States, 387 F.3d 329, 333 (4th Cir. 2004).
12

affirmative defense . . . . [unless] all facts necessary to the 

affirmative defense clearly appear on the face of the 

complaint.” Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th 

Cir. 2007) (en banc) (internal quotations omitted). 

While WCS’s complaint alleges that the unions directed a 

series of adverse lawsuits in order to wage a secondary boycott, 

the mere reference to the purportedly sham proceedings does not 

show--on the face of the complaint--whether Noerr-Pennington

bars WCS’s claims as a matter of law. In fact, much of the 

relevant evidence that the district court considered on the 

point consisted of materials6 the parties appended as part of 

the “Rule 12(b)(6) motion to dismiss, which is not a pleading.” 

Mellon Bank, N.A. v. Ternisky, 999 F.2d 791, 795 (4th Cir. 

1993). 

We also note that when “matters outside the pleadings are 

presented to and not excluded by the court, the [Rule 12(b)(6)] 

motion must be treated as one for summary judgment under Rule 

56,” and “[a]ll parties must be given a reasonable opportunity 

to present all the material that is pertinent to the motion.” 

 6 These documents principally concerned the underlying 

administrative and state court proceedings and consisted of 

permit applications, legal filings, administrative hearings, 

judicial orders, deposition excerpts, and affidavits. The unions 

attached these materials to their motion to dismiss, as did WCS 

to their response to that motion. 
13

Fed. R. Civ. P. 12(d). Here, the district court did not 

formally convert the unions’ motion to dismiss to one for 

summary judgment, believing instead that it could adjudicate the 

unions’ motion under Rule 12(b)(6) by considering documents 

incorporated into the complaint by reference, and taking 

judicial notice of the purported sham proceedings.

It is not obvious to us that incorporation by reference is 

appropriate in this context given our holding in Goodman that a 

district court may consider only “the face of the complaint.” 

Goodman, 494 F.3d at 464. Nor should “judicial notice” be used 

as an expedient for courts to consider “matters beyond the 

pleadings” and thereby upset the procedural rights of litigants 

to present evidence on disputed matters. Greater Balt. Ctr. for 

Pregnancy Concerns, Inc. v. Mayor & City Council of Baltimore, 

___ F.3d ___, 2013 WL 3336884, slip op. at 10 (4th Cir. July 3, 

2013) (en banc) (internal quotations omitted); see Haavistola v. 

Cmty. Fire Co. of Rising Sun, Inc. 6 F.3d 211, 218 (4th Cir. 

1993).

But the bottom line is that the district court did allow 

the parties to supplement the record before ruling on the motion 

to dismiss. Moreover, the parties did not request discovery or 

otherwise object to the court’s procedural management of the 

unions’ motion to dismiss. As we have stated before,
14

we are not bound by the label that the district court 

places upon its disposition of the case. Whenever 

outside matters are presented to and not excluded by 

the trial court, the motion to dismiss should be 

considered on appeal as one for summary judgment even 

though the trial court characterized its action as a 

dismissal of the case for failure of plaintiffs to 

state a claim upon which relief can be granted. The 

record in this case shows that both parties were given 

a reasonable opportunity to present evidence upon 

which the trial court could properly determine whether 

summary judgment should be entered. Therefore, it is 

proper for this court on appeal to consider this as a 

motion for summary judgment.

Dean v. Pilgrim’s Pride Corp., 395 F.3d 471, 474 (4th Cir. 2005) 

(internal quotations omitted). We conclude that the principle 

announced in Dean applies directly here, and so we too will 

consider the unions’ motion to dismiss based on the NoerrPennington doctrine as one for summary judgment. 

As to the dismissal of the Fund under Rule 12(b)(6),

therefore, we will “review the district court’s grant of a 

motion to dismiss de novo,” McCauley v. Home Loan Inv. Bank, 

F.S.B., 710 F.3d 551, 554 (4th Cir. 2013), accepting the 

allegations of WCS’s complaint as true, Trail v. Local 2850 UAW 

United Def. Workers of Am., 710 F.3d 541, 543 (4th Cir. 2013). 

But because we have refashioned the district court’s dismissal 

of the claim against the remaining defendants as a grant of 

summary judgment, we review de novo whether there are any 

genuine issues of material fact for the trier of fact to resolve

and, if not, whether the unions were entitled to dismissal as a 
15

matter of law. Reynolds v. Am. Nat’l Red Cross, 701 F.3d 143, 

149 (4th Cir. 2012).

III.

We first consider the district court’s decision to dismiss 

the claim against the Fund on the basis that it is not a “labor 

organization” under the NLRA subject to the secondary boycott 

prohibitions of the LMRA. The NLRA defines a “labor 

organization” as “any organization of any kind, or any agency or 

employee representation committee or plan, in which employees 

participate and which exists for the purpose, in whole or in 

part, of dealing with employers concerning grievances, labor 

disputes, wages, rates of pay, hours of employment, or 

conditions of work.” 29 U.S.C. § 152(5).

We have “given a broad interpretation to the ‘dealing with’ 

requirement.” NLRB v. Peninsula Gen. Hosp. Med. Ctr., 36 F.3d 

1262, 1270 (4th Cir. 1994). But we have also explained that the 

“dealing with” phraseology denotes a “bilateral mechanism” 

through which an employee entity and management reciprocally 

interact:

As we understand this “bilateral mechanism” analysis, 

several general principles are readily 

apparent. . . : (1) while the term “dealing with” 

connotes activity which is broader than collective 

bargaining, an employer does not necessarily “deal 

with” its employees merely by communicating with them, 

even if the matters addressed concern working 
16

conditions; (2) “dealing” occurs only if there is a 

“pattern or practice” over time of employee proposals 

concerning working conditions, coupled with management 

consideration thereof; [and] (3) isolated instances of 

the conduct described in number two do not constitute 

“dealing[.]”

Id. at 1271-72. 

An employee entity may be a “labor organization” if its 

purpose or activity involves “dealing with” employers. Id. at 

1270 n.6. Yet the Fund satisfies neither of these criteria. 

First, WCS’s own complaint alleges that the Fund is prohibited 

under its charter from “participating directly or 

indirectly . . . in union collective activities.” J.A. 13. 

Second, while the “question of whether an organization is a 

‘labor organization’ is primarily one of fact,” Peninsula Gen., 

36 F.3d at 1269, the only fact suggesting any interactions

between the Fund and an employer concerns the alleged secondary 

boycott. There is plainly no “bilateral mechanism” when the 

only alleged contact between an employee entity and management 

is an unfair labor practice directed against an employer. 

Although the Fund has designated itself as a “labor 

organization” for purposes of tax liability, this is not

sufficient to render it a “labor organization” for the purposes 

of labor law. The Internal Revenue Code (“I.R.C.”) has a 

distinct definition of “labor organization.” See 26 U.S.C. 

§ 501(c)(5); 26 C.F.R. § 1.501(c)(5)-1(a). The First Circuit 
17

has refused to borrow the NLRA definition of “labor 

organization” to determine the meaning of that term under the 

I.R.C. Tupper v. United States, 134 F.3d 444, 446 n.1 (1st Cir. 

1998). We agree with our sister circuit that the “I.R.C. and 

the NLRA have very different objectives,” and we similarly 

decline “to import definitions from statutes with unrelated or 

cross-purposes.” Id.

Because Plaintiffs fail to allege that the Fund has engaged 

in a pattern or practice of “dealing with” employers, it is not 

a “labor organization” under the NLRA and is not subject to the 

conditions of the LMRA. We therefore affirm the district 

court’s decision to dismiss the complaint against the Fund. 

IV.

A.

We next consider whether the district court correctly

dismissed the claim against the remaining defendants. 

Plaintiffs allege that the unions’ various legal challenges to 

the Waugh Chapel development violated the secondary boycott 

provision of the NLRA, which extends to efforts to “exert 

pressure on an unrelated, secondary or neutral employer in order 

to coerce the secondary employer to cease dealing with the 

primary employer, thereby advancing the union’s goals 

indirectly.” R.L. Coolsaet Constr. Co. v. Local 150, Int’l 
18

Union of Operating Eng’rs, AFL-CIO, 177 F.3d 648, 655 (7th Cir. 

1999) (internal quotations omitted).

The unions counter that their litigation activity is 

protected by the Noerr-Pennington doctrine, which safeguards the 

First Amendment right to “petition the government for a redress

of grievances,” U.S. Const. amend. I, by immunizing citizens 

from the liability that may attend the exercise of that right. 

See Noerr, 365 U.S. at 136-39; Pennington, 381 U.S. at 669. 

The principle originated from Noerr, where the Supreme 

Court extended First Amendment protection to lobbying efforts

for anti-competitive legislation, explaining that “mere attempts 

to influence the passage or enforcement of laws” cannot comprise

a violation of antitrust law. Noerr, 365 U.S. at 135. 

The Court has since expanded Noerr-Pennington immunity to 

alleged labor law violations, BE & K Constr. Co. v. NLRB, 536 

U.S. 516, 526 (2002), and to “the approach of citizens or groups 

of them to administrative agencies . . . and to courts, the 

third branch of Government.” Cal. Motor, 404 U.S. at 510. 

However, the First Amendment offers no protection when 

“petitioning activity ostensibly directed toward influencing 

governmental action, is a mere sham to cover . . . an attempt” 

to violate federal law. Prof’l Real Estate Investors, Inc. v. 

Columbia Pictures Indus. (“PREI”), 508 U.S. 49, 56 (1993)

(internal quotations omitted). 
19

The Supreme Court’s first engagement with this exception 

occurred in California Motor, where highway carriers instituted 

a slew of “state and federal proceedings to resist and defeat 

applications by respondents to acquire operating rights or to 

transfer or register those rights.” 404 U.S. at 509. 

Respondents, a group of rival highway carriers, filed an 

antitrust suit claiming this litigation activity constituted 

anti-competitive conduct. The Court concluded that the facts 

alleged came within the “sham” exception to the Noerr-Pennington

doctrine, explaining that sham litigation occurs where “a 

pattern of baseless, repetitive claims . . . emerge[s] which 

leads the factfinder to conclude that the administrative and 

judicial processes have been abused.” Id. at 513. 

The Supreme Court revisited the sham litigation standard in 

PREI, which involved a defendant’s counterclaim that the

copyright action it was defending was a sham suit designed to 

violate antitrust law. In examining the applicability of NoerrPennington, the Court set forth a “two-part definition of ‘sham 

litigation.’ First, the lawsuit must be objectively baseless in 

the sense that no reasonable litigant could realistically expect 

success on the merits.” PREI, 508 U.S. at 60. The second 

inquiry focuses on the “litigant’s subjective 

motivation . . . [and] whether the baseless lawsuit conceals an 

attempt to” violate federal law “through the use of the 
20

governmental process.” Id. at 60-61. Because “the sham 

exception contains an indispensable objective component,” id. at 

58, “even an improperly motivated lawsuit may not be 

enjoined . . . as an unfair labor practice unless such 

litigation is baseless,” id. at 59. 

It is unclear whether PREI distinguished or displaced the 

sham litigation test first propounded in California Motor. Two 

of our sister circuits, however, “reconcile” the two cases “by 

reading them as applying to different situations. Professional 

Real Estate Investors provides a strict two-step analysis to 

assess whether a single action constitutes sham 

petitioning. . . . California Motor Transport deals with the 

case where the defendant is accused of bringing a whole series 

of legal proceedings.” USS–POSCO Indus. v. Contra Costa Cnty.

Bldg. & Const. Trades Council, AFL-CIO (“POSCO”), 31 F.3d 800, 

810-11 (9th Cir. 1994); accord Primetime 24 Joint Vent. v. Nat’l 

Broad. Co., 219 F.3d 92, 101 (2d Cir. 2000). 

We have not had occasion to confront this issue, as our 

precedent has applied PREI only where a party has alleged a 

single sham proceeding. See IGEN Int’l, 335 F.3d at 307-08; 

Baltimore Scrap Corp. v. David J. Joseph Co., 237 F.3d 394, 397-

98 (4th Cir. 2001). Nevertheless, we agree with the distinction

adopted by our sister circuits. In the absence of any express 

statement that the sham litigation standard in PREI supplanted
21

California Motor, we are obligated to “follow the case which 

directly controls, leaving to th[e] [Supreme Court] the 

prerogative of overruling its own decisions.” Rodriguez de 

Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989).7 

We distinguish PREI because it is ill-fitted to test

whether a series of legal proceedings is sham litigation. When

a party contends that it is defending a sham lawsuit, it is 

relatively simple for a judge to decide whether the singular 

claim it is presiding over is objectively baseless. See PREI, 

508 U.S. at 59-61. But it is an entirely different undertaking

to collaterally review--as here--fourteen state and 

administrative lawsuits for baselessness. It is especially

difficult to do so where the presiding tribunal in those cases 

had no occasion to measure the baselessness of the suit because 

 7 While the parties fully briefed and argued this issue in 

the court below, WCS has not pressed for a different sham 

litigation standard on appeal. Nevertheless, “we possess the 

discretion under appropriate circumstances to disregard the 

parties’ inattention to a particular argument or issue.” United 

States v. Ashford, ___ F.3d ___, 2013 WL 3069778, slip op. at 2 

(4th Cir. June 20, 2013) (internal quotations omitted). In 

order to properly assess whether WCS’s complaint should be 

dismissed because of the Noerr-Pennington doctrine, we believe 

it is necessary to apply the correct sham litigation standard, 

and we exercise our discretion to do so. 

At oral argument, the unions sensed our inclination to sua 

sponte address this question, and requested that we allow 

supplemental briefing on this point. We deny this request, as 

we have reviewed the parties’ briefing at the district court on 

this issue and find it more than sufficient. 
22

(1) it had no inkling that the action comprised a possible 

campaign of sham litigation, and (2) the plaintiffs preempted an 

assessment of frivolity by prematurely withdrawing some of their

suits. 

Accordingly, when purported sham litigation encompasses a 

series of legal proceedings rather than a singular legal action, 

we conclude the sham litigation standard of California Motor

should govern. In this context, the focus is not on any single 

case. Rather a district court should conduct a holistic 

evaluation of whether “the administrative and judicial processes 

have been abused.” Cal. Motor, 404 U.S. at 513. The pattern of 

the legal proceedings, not their individual merits, centers this

analysis: 

One claim, which a court or agency may think baseless, 

may go unnoticed; but a pattern of baseless, 

repetitive claims may emerge which leads the 

factfinder to conclude that the administrative and 

judicial processes have been abused. That may be a 

difficult line to discern and draw. But once it is 

drawn, the case is established that abuse of those 

processes produced an illegal result, viz., 

effectively barring respondents from access to the 

agencies and courts. Insofar as the administrative or 

judicial processes are involved, actions of that kind 

cannot acquire immunity by seeking refuge under the 

umbrella of “political expression.”

Id. Of course, the subjective motive of the litigant and the

objective merits of the suits are relevant, but other signs of 

bad-faith litigation--including those present in this case--may 

also be probative of an abuse of the adjudicatory process. 
23

B.

We now review the unions’ motion to dismiss under this 

test.8 Accordingly, we ask whether the record evidence presents 

a genuine issue of material fact as to whether the unions 

indiscriminately filed (or directed) a series of legal 

proceedings without regard for the merits and for the purpose of 

violating federal law. We conclude that it does. 

In our view, the vast majority of the legal challenges 

failed demonstrably. In fact, it appears that only the March 

2010 suit to enjoin the approval of TIF bonds could be called 

successful.

The plaintiffs objectively lacked standing in the 

proceedings to rescind the rezoning decision by the Council, as 

Maryland law requires a party to attend the public hearing of an 

administrative body in order to have standing as an aggrieved 

party. See, e.g., Cnty. Council v. Billings, 21 A.3d 1065, 1075 

(Md. 2011).

Two additional suits regarding the MDE issuance of surface 

mining permits were dismissed as “based in critical part only on 

 8 “Although we could remand to the district court for 

reconsideration under the appropriate standard of review, doing

so would serve no useful purpose. . . . The validity vel non of 

a summary judgment entails a pure question of law and, 

therefore, we are fully equipped to resolve the question as a 

matter of first-instance appellate review.” Piccicuto v. Dwyer, 

39 F.3d 37, 40 (1st Cir. 1994). 
24

conjecture,” J.A. 196, as the petitioners supplied only their 

own conclusory affidavits of environmental harm with no 

scientific data or expert testimony. Finally, collateral 

estoppel would have barred the nine appeals of the building and 

grading permits, as the petitioners simply repeated the 

substance of their nuisance claim--dismissed weeks earlier--that 

the developments caused environmental harm to their property. 

While there is no particular win-loss percentage that a 

litigant must achieve to secure the protection of the First 

Amendment, a one-out-of-fourteen batting average at least 

suggests “a policy of starting legal proceedings without regard 

to the merits and for the purpose of [violating the law].” 

POSCO, 31 F.3d at 811; cf. Kaiser Found. Health Plan, Inc. v. 

Abbott Lab. Inc., 552 F.3d 1033, 1046-47 (9th Cir. 2009) (no 

sham litigation where plaintiffs “won seven of the seventeen 

suits” and eight of the ten defeats concerned novel or close 

questions of law); POSCO, 31 F.3d at 811 (no sham litigation 

where fifteen out of twenty-nine suits succeeded); Twin City 

Bakery Workers & Welfare Fund v. Astra Aktiebolag, 207 F. Supp. 

2d 221, 224 (S.D.N.Y. 2002) (no sham litigation where the court 

allowed “four of the six asserted patents to proceed beyond 

summary judgment.”). 

Of course, some of the legal challenges directed by the 

unions may have been justifiable in one sense or another. For 
25

example, the petition appealing the issuance of TIF bonds could 

be characterized as successful. Nevertheless, the fact that 

there may be moments of merit within a series of lawsuits is not 

inconsistent with a campaign of sham litigation, for “even a 

broken clock is right twice a day.” POSCO, 31 F.3d at 811. 

We note some other indicia of bad-faith litigation. First, 

there was a perverse nature to the environmental litigation 

directed by the unions to enjoin the commercial development. 

Because WCS and MDE entered into a consent decree to remediate 

preexisting environmental contamination, an injunction would 

have terminated the consent decree and prevented any 

environmental remediation from actually occurring. 

Second, plaintiffs withdrew ten of the fourteen suits under 

suspicious circumstances. UFCW Secretary-Treasurer Murphy’s 

eleventh-hour withdrawal of the August 2008 petition occurred a 

day before a hearing on the merits and after WCS had expended 

significant resources opposing the petition. And in the nine 

appeals of the building and grading permits, plaintiffs 

voluntarily dismissed their suits--according to WCS--to avoid 

complying with subpoenas of financial records that would have 

revealed that the unions were directing and paying for the 

litigation. While third-party financing of legal proceedings

does not itself demonstrate an illegal purpose or render those 

suits sham, see Balt. Scrap, 237 F.3d at 400-01, a reasonable 
26

factfinder could credit this evidence in deciding whether “the 

administrative and judicial processes have been abused.” Cal. 

Motor, 404 U.S. at 513. 

The unions’ post hoc justifications for these suits, as 

well as their alternative theories for why the sham litigation 

exception should not apply, fail to persuade us that dismissal 

of WCS’s complaint is appropriate. We first reject the notion 

that because no attorney or union member faced liability for 

sanctions or an abuse of process tort under Maryland law, 

imposing federal liability for sham litigation “[u]ndermines 

[f]ederalism” and the autonomy of states to regulate access to 

their courts. Appellee’s Br. at 32. Maryland courts have the 

authority to police litigation abuses, Felder v. Casey, 487 U.S. 

131, 138 (1988), but no state may dictate the terms of a 

litigant’s First Amendment right to petition its courts by the 

operation of this power. See Harman v. Forssenius, 380 U.S. 

528, 540 (1965) (“State[s] may not impose a penalty upon those 

who exercise a right guaranteed by the Constitution.”).

Just as we do not trespass on the prerogative of Maryland 

to police access to its courts, a state court’s decision of 

whether or not to penalize sham litigation cannot control our 

determination of whether we should afford it constitutional 

protection. It would make little sense to cede that federal

question to state law proceedings that involve issues that are 
27

distinct from our inquiry under California Motor. See Keller v. 

State Bar of Cal., 496 U.S. 1, 11 (1990) (“Of course the Supreme 

Court of California is the final authority on the ‘governmental’

status of the State Bar of California for purposes of state law. 

But its determination . . . is not binding on us when such a 

determination is essential to the decision of a federal 

question.”).

In any event, while a state court’s appraisal of the merits 

of litigation aids the sham exception inquiry, see Balt. Scrap, 

237 F.3d at 399-400, the plaintiffs in the majority of the cases 

withdrew their suits before an adjudication. Moreover, WCS 

could not pursue sanctions against the unions, as they were not 

parties to the litigation. And even in the cases that reached 

an adjudication, we accord slight significance to the absence of 

a formal declaration of baselessness by the presiding tribunal 

where--as here--the defendants and the court did not have reason 

to suspect an improper motive behind the suits. Cf. PREI, 508 

U.S. at 51-55. 

The unions also emphasize that sham litigation must 

“effectively bar[] [WCS] from access to the agencies and 

courts.” Cal. Motor, 404 U.S. at 513. But this “accessbarring” language cannot mean that litigation must reach such a

crescendo as to literally incapacitate the legal system and
28

prevent another litigant from receiving their day in court.9 

Instead, legal challenges need only “harass and deter 

[litigants] in their use of administrative and judicial 

proceedings so as to deny them ‘free and unlimited’ access to 

those tribunals.” Id. at 511 (emphasis added). It is enough 

that WCS alleged that the series of legal challenges threatened 

their $260 million commercial development with substantially 

increased risk and costs. If any of those suits had succeeded 

in staying the project, even momentarily, WCS may have succumbed 

to the boycott and replaced Wegmans with a unionized tenant. 

For this reason, we reject the unions’ final argument that 

their series of legal challenges was not access-barring as a 

matter of law because it did not block development of the 

shopping centers. If anything, the ineffectiveness of the 

lawsuits in this case tends to prove, not dispel, the charge of 

 9 We disagree with the unions that either Racetrac 

Petroleum, Inc. v. Prince George’s County, 601 F. Supp. 892 (D. 

Md. 1985), aff’d on its reasoning, 786 F.2d 202 (4th Cir. 1986), 

or Pendleton Construction Corp. v. Rockbridge County, Virginia, 

652 F. Supp. 312 (W.D. Va. 1987), aff’d on its reasoning, 837 

F.2d 178 (4th Cir. 1988), stand for such a proposition. These 

cases neither involved a pattern of litigation nor adopted the 

suggestion that litigation cannot be sham where a litigant 

ultimately received a fair adjudication. In fact, we rejected 

such a literal conception of access-barring in Hosp. Building

Co. v. Trs. of Rex Hosp., concluding that access-barring occurs 

“if the proof establishes . . . intent to delay approval of

HBC’s application for a certificate of need and thereby delay

its entrance into the Raleigh market.” 691 F.2d 678, 687 (4th 

Cir. 1982) (emphasis added).
29

sham litigation. Because successfully halting the project would 

defeat any sham litigation argument in the first place, see

Balt. Scrap, 237 F.3d at 399 (“By definition, a winning lawsuit 

is a reasonable effort at petitioning for redress and therefore 

not a sham.” (internal quotations omitted)), this “heads I win, 

tails you lose” theory of access-barring would nullify the sham 

litigation exception altogether. 

We conclude that there remains a genuine issue of material 

fact as to whether the pattern of litigation alleged in WCS’s 

complaint derived from “a policy of starting legal proceedings 

without regard to the merits and for the purpose of” waging a 

secondary boycott. POSCO, 31 F.3d at 811. In light of the poor 

litigation record and the signs of bad-faith petitioning, a 

factfinder could reasonably conclude that the unions have abused 

their right to petition the courts and, as a result, have 

forfeited the protection of the First Amendment. Therefore, the 

district court erred in dismissing WCS’s claims against the 

unions. 

V.

For the foregoing reasons, we affirm the district court’s 

dismissal of WCS’s complaint as to the Fund, vacate the
30

dismissal of WCS’s complaint as to the remaining union 

defendants, and remand for further proceedings. 

AFFIRMED IN PART, 

VACATED IN PART, 

AND REMANDED