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SALEM GRAIN CO. v. CONSOLIDATED GRAIN & BARGE CO.

Cite as 297 Neb. 682

Salem Grain Company, Inc., appella

Consolidated Grain and Barge

et al., appellees.

___ N.W.2d ___

Filed September 8, 2017. No. S-16-995.

1. Motions to Dismiss: Pleadings: Appeal and Error. A district court’s 

grant of a motion to dismiss on the pleadings is reviewed de novo, 

accepting the allegations in the complaint as true and drawing all reasonable inferences in favor of the nonmoving party.

2. Statutes: Appeal and Error. Statutory interpretation presents a question of law, for which an appellate court has an obligation to reach 

an independent conclusion irrespective of the decision made by the 

court below.

3. Federal Acts: Vendor and Vendee. Under the doctrine established by 

Eastern R. Conf. v. Noerr Motors, 365 U.S. 127, 81 S. Ct. 523, 5 L. Ed. 

2d 464 (1961), and Mine Workers v. Pennington, 381 U.S. 657, 85 S. Ct. 

1585, 14 L. Ed. 2d 626 (1965), federal antitrust laws do not regulate the 

conduct of private individuals in seeking anticompetitive action from 

the government.

4. Constitutional Law: Federal Acts. The doctrine established by Eastern 

R. Conf. v. Noerr Motors, 365 U.S. 127, 81 S. Ct. 523, 5 L. Ed. 2d 464 

(1961), and Mine Workers v. Pennington, 381 U.S. 657, 85 S. Ct. 1585, 

14 L. Ed. 2d 626 (1965), is based on both the First Amendment’s petition clause and the statutory interpretation of federal antitrust laws.

5. Vendor and Vendee. The application of the doctrine established by 

Eastern R. Conf. v. Noerr Motors, 365 U.S. 127, 81 S. Ct. 523, 5 L. 

Ed. 2d 464 (1961), and Mine Workers v. Pennington, 381 U.S. 657, 85 

S. Ct. 1585, 14 L. Ed. 2d 626 (1965), to claims under antitrust laws is 

ultimately based on the fact that antitrust laws, tailored as they are for 

the business world, are not at all appropriate for application in the political arena.

6. Vendor and Vendee: Conspiracy. There is no “conspiracy” exception 

to the doctrine established by Eastern R. Conf. v. Noerr Motors, 365 

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

11/09/2017 09:14 AM CST
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U.S. 127, 81 S. Ct. 523, 5 L. Ed. 2d 464 (1961), and Mine Workers v. 

Pennington, 381 U.S. 657, 85 S. Ct. 1585, 14 L. Ed. 2d 626 (1965), 

when applied to claims under antitrust laws.

7. Constitutional Law: Vendor and Vendee: Conspiracy. The line to 

determine when the conspiracy exception applies is based not on whether 

a claim is antitrust in nature, but on which theory the application of the 

doctrine established by Eastern R. Conf. v. Noerr Motors, 365 U.S. 127, 

81 S. Ct. 523, 5 L. Ed. 2d 464 (1961), and Mine Workers v. Pennington, 

381 U.S. 657, 85 S. Ct. 1585, 14 L. Ed. 2d 626 (1965), is predicated on, 

either the First Amendment or the antitrust laws.

8. Consumer Protection. Neb. Rev. Stat. § 59-1602 (Reissue 2010) mirrors the language of 15 U.S.C. § 45(a)(1) (2012).

9. ____. Neb. Rev. Stat. § 59-1603 (Reissue 2010) is construed in accordance with 15 U.S.C. § 1 (2012).

10. Consumer Protection: Intent. The Consumer Protection Act, Neb. Rev. 

Stat. §§ 59-1601 to 59-1622 (Reissue 2010 & Cum. Supp. 2012), was 

intended to be an antitrust measure to protect Nebraska consumers from 

monopolies and price-fixing conspiracies.

11. Consumer Protection. The Consumer Protection Act, Neb. Rev. Stat. 

§§ 59-1601 to 59-1622 (Reissue 2010 & Cum. Supp. 2012), is tailored 

for the business world, not for the political arena.

12. Pleadings. The doctrine established by Eastern R. Conf. v. Noerr 

Motors, 365 U.S. 127, 81 S. Ct. 523, 5 L. Ed. 2d 464 (1961), and Mine 

Workers v. Pennington, 381 U.S. 657, 85 S. Ct. 1585, 14 L. Ed. 2d 626 

(1965), is an affirmative defense.

13. Rules of the Supreme Court: Pleadings. An affirmative defense may 

be asserted in a motion filed pursuant to Neb. Ct. R. Pldg. § 6-1112(b)(6) 

when the defense appears on the face of the complaint.

14. Appeal and Error. In the absence of plain error, an appellate court considers only claimed errors which are both assigned and discussed.

15. Rules of the Supreme Court: Pleadings: Notice. The Nebraska Rules 

of Pleading in Civil Actions, like the federal rules, have a liberal pleading requirement for both causes of action and affirmative defenses, but 

the touchstone is whether fair notice was provided.

16. Appeal and Error. An appellate court is not obligated to engage in an 

analysis that is not necessary to adjudicate the case and controversy 

before it.

17. Conspiracy: Words and Phrases. A civil conspiracy is a combination 

of two or more persons to accomplish by concerted action an unlawful or oppressive object, or a lawful object by unlawful or oppressive means.

18. Actions: Aiding and Abetting. A claim of aiding and abetting is that 

in addition to persons who actually participate in concerted wrongful 
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action, persons who aid, abet, or procure the commission thereof, are 

subject to a civil action therefor.

19. Actions: Conspiracy: Aiding and Abetting: Liability. Claims of civil 

conspiracy and aiding and abetting are essentially methods for imposing 

joint and several liability on all actors who committed a tortious act or 

any wrongful acts in furtherance thereof.

20. Aiding and Abetting: Torts. A claim of aiding and abetting requires the 

presence of an underlying tort.

21. Conspiracy: Torts. A “conspiracy” is not a separate and independent 

tort in itself, but, rather, is dependent upon the existence of an underlying tort. Without such underlying tort, there can be no claim for relief 

for a conspiracy to commit the tort.

22. Conspiracy: Aiding and Abetting. A statutory violation alone is insufficient to sustain a claim of civil conspiracy or aiding and abetting.

Appeal from the District Court for Richardson County: 

Daniel E. Bryan, Jr., Judge. Affi

David A. Domina and Christian T. Williams, of Domina Law 

Group, P.C., L.L.O., for appellant.

Terry C. Dougherty, Audrey R. Svane, and Kari A.F. Scheer, 

of Woods & Aitken, L.L.P., for appellee Consolidated Grain 

and Barge Co.

Robert S. Keith and Alexis M. Wright, of Engles, Ketcham, 

Olson & Keith, P.C., for appellees Gary Jorn, Kevin Malone, 

and Beth Sickel.

Bonnie M. Boryca and Patrick R. Guinan, of Erickson & 

Sederstrom, P.C., for appellees Becky Cromer, Ray Joy, Bart 

Keller, and Charles Radatz.

Heavican, C.J., Wright, Miller-Lerman, Cassel

Kelch, and Funke, 

Funke, J

I. NATURE OF CASE

Salem Grain Company, Inc. (Salem), appeals an order 

from the district court for Richardson County dismissing its 
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complaint with prejudice for failure to state a claim upon 

which relief could be granted. The court found that all appellees were entitled to immunity from Salem’s claims under 

Nebraska’s Consumer Protection Act1 (NCPA) and the NoerrPennington doctrine2

 and that Salem’s claims of conspiracy 

and aiding and abetting required an underlying tort to be 

actionable. Accordingly, the court ruled that any amendments 

to the pleading would be futile. We affirm.

II. FACTS

Salem operates commercial grain warehouses and elevators 

and owns trading businesses throughout southeast Nebraska, 

including a location in Richardson County, Nebraska. 

Consolidated Grain and Barge Co. (CGB) also operates commercial grain warehouses. In 2012, CGB expressed an interest 

in expanding its operations to the Falls City, Nebraska, area, 

and it now owns and operates a commercial grain warehouse 

in Richardson County, which is in competition with Salem’s 

Richardson County warehouse.

At the time of the alleged actions, the other appellees 

were involved with various organizations in Falls City: Becky 

Cromer was the executive director of the Falls City Economic 

Development and Growth Enterprise (EDGE), a private organization; Gary Jorn, Ray Joy, and Bart Keller were members 

of EDGE; Kevin Malone was a member of EDGE, the Falls 

City Community Redevelopment Authority (CRA), the Citizen 

Advisory Review Committee (CARB), and the Falls City 

Planning and Zoning Board; Charles Radatz was a member 

of EDGE and the CRA; and Beth Sickel was a member of 

1 Neb. Rev. Stat. §§ 59-1601 to 59-1622 (Reissue 2010 & Cum. Supp. 

2012).

2 See Eastern R. Conf. v. Noerr Motors, 365 U.S. 127, 81 S. Ct. 523, 5 L. 

Ed. 2d 464 (1961), and Mine Workers v. Pennington, 381 U.S. 657, 85 S. 

Ct. 1585, 14 L. Ed. 2d 626 (1965).
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EDGE, the CRA, and the CARB. Each of these appellees were 

sued in their individual capacities.

The remaining defendants, “John Doe I-IV and Jane Doe 

I-IV,” were members of EDGE, the CRA, or the CARB 

that may have participated in the alleged wrongful acts 

against Salem.

Salem filed a complaint alleging that each of the individual 

appellees engaged in a pattern of behavior—through a series of 

contracts, combinations, and conspiracies—with the intent to 

deprive it of information, an opportunity to be heard, and due 

process of law, which caused Salem financial damages. More 

specifically, it alleged that its damages were a result of the 

unfair increased competition that CGB brought to the region 

through the special privileges it received from Falls City and 

that the individual appellees aided and abetted in concealing 

from Salem and the community those benefits.

Salem asserts that the individual appellees’ pattern of 

behavior included preventing legal notice of the following 

actions from being provided to Salem: the annexation of 

land into Falls City; the rezoning of said land for commercial use; the declaration of said land as blighted, which made 

it eligible for tax increment financing; the approval of tax 

increment financing and the issuance of at least one bond to 

assist CGB; and the procurement of state and federal grants 

to assist CGB. In doing so, Salem contended that the appellees violated Nebraska’s Open Meetings Act3

 (NOMA) and 

the NCPA.

As a result of CGB’s entry into the market at the end of 

2012, Salem alleged an annual loss net profit of 10 to 20 cents 

per bushel for 2 million bushels per year of grain that it would 

have or did handle in 2013 through 2015. During that same 

period, Salem alleged an annual minimum loss of $150,000 in 

storage revenue.

3 Neb. Rev. Stat. §§ 84-1407 to 84-1414 (Reissue 2008 & Supp. 2011).
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CGB; Cromer, Joy, Keller, and Radatz; and Jorn, Malone, 

and Sickel separately moved to dismiss Salem’s complaint, 

arguing that it had failed to state a claim upon which relief 

could be granted, under Neb. Ct. R. Pldg. § 6-1112(b)(6). 

CGB, Jorn, Malone, and Sickel also asserted that the appellees were entitled to immunity under the Noerr-Pennington

doctrine.

The court ruled that Salem could not state any claim against 

the appellees pursuant to the NCPA, because the appellees 

were entitled to immunity, under the Noerr-Pennington doctrine, and rejected Salem’s claim that an exception to the 

doctrine applied, because the appellees acted unlawfully by 

violating the NOMA. The court also ruled that the conspiracy 

and aiding and abetting claims required an underlying tort to 

be viable. Therefore, the court dismissed the complaint with 

prejudice, essentially finding any amendment would be futile. 

Salem appealed.

III. ASSIGNMENTS OF ERROR

Salem assigns, restated and reordered, that the court erred 

(1) in finding the appellees immune from suit, under the 

Noerr-Pennington doctrine or otherwise; (2) in finding that 

conspiracy and aiding and abetting claims are not independent claims upon which relief can be granted but, instead, 

require the allegation of an independent tort; (3) by sustaining appellees’ § 6-1112(b)(6) motions to dismiss; (4) by 

denying leave to amend; and (5) by not sustaining Salem’s 

jury demand.

IV. STANDARD OF REVIEW

[1] A district court’s grant of a motion to dismiss on the 

pleadings is reviewed de novo, accepting the allegations in 

the complaint as true and drawing all reasonable inferences in 

favor of the nonmoving party.4

4 Zapata v. McHugh, 296 Neb. 216, 893 N.W.2d 720 (2017).
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[2] Statutory interpretation presents a question of law, for 

which an appellate court has an obligation to reach an independent conclusion irrespective of the decision made by the 

court below.5

V. ANALYSIS

Salem argues, summarized, that it and other grain warehouses in and around southeast Nebraska were injured by 

CGB’s entry into the market in Richardson County, because 

CGB received special economic privileges. It claims that 

the special privileges provided to CGB were the result of 

the appellees’ conspiracy to prevent the public, and Salem 

specifically, from having knowledge of the economic development activities that the city council of Falls City was 

providing. It further claims that the appellees participated 

in violations of the NOMA in order to obtain those special 

privileges.

As a result, it asserts that the conspiracy to provide CGB an 

unfair advantage in the marketplace by violating the NOMA 

was a violation of the NCPA under §§ 59-1602 and 59-1603, 

which damaged Salem and created a cause of action under 

§ 59-1609. Further, it contends that the appellees’ conspiracy 

to engage in wrongful conduct—by violating the NOMA, 

violating the NCPA, and withholding information—is sufficient to sustain claims of conspiracy and aiding and abetting. CGB argues that Salem’s single factual allegation—

that it expressed an interest in opening a grain warehouse 

in the Falls City area—cannot support any claims against 

it. Further, the appellees contend that, acting in their individual capacities, their actions were nothing more than petitioning the government to offer CGB incentives to open a 

location in Falls City to advance economic development in 

the community.

5 Hargesheimer v. Gale, 294 Neb. 123, 881 N.W.2d 589 (2016).
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1. Appellees Are Entitled to Im

From Salem’s NCPA Claims 

Noerr-Pennington D

(a) Parties’ Contentions

Salem argues that the Noerr-Pennington doctrine is a narrow defense that applies only to antitrust claims and not to its 

claims under the NCPA. It argues that §§ 59-1602 and 59-1603 

of the NCPA were modeled after the Federal Trade Commission 

Act6 (FTCA), not the Sherman Act7; that the FTCA focuses on 

consumer rather than market protection; and that the FTCA is, 

therefore, broader than merely antitrust claims.

Further, it contends that if we do find that the NoerrPennington doctrine applies to its claims, we should adopt a 

“conspiracy” exception to the doctrine in which politicians 

or political entities are involved as conspirators with private 

actors. While the U.S. Supreme Court has specifically rejected 

such an exception to the Noerr-Pennington doctrine, Salem 

contends that the Supreme Court limited its holding to the 

Sherman Act. Accordingly, assuming that the doctrine applies 

outside the context of antitrust claims, Salem contends that 

the doctrine remains subject to the “conspiracy” exception for 

unlawful conduct in petitioning the government.

Appellees argue that the Noerr-Pennington doctrine entitles 

them to immunity from Salem’s claims under two theories. 

First, to the extent that the Noerr-Pennington doctrine is 

limited to the Sherman Act, and extended to the FTCA, 

private citizens petitioning their government for favorable 

business conditions are entitled to immunity, because federal 

antitrust laws were tailored to regulate business, not political arenas. Further, they assert that the NCPA is statutorily 

required to be construed in accordance with similar federal 

antitrust laws. Second, the First Amendment right to petition 

6 See 15 U.S.C. §§ 41 to 58 (2012).

7 See 15 U.S.C. §§ 1 to 7 (2012).
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the government, which the Noerr-Pennington doctrine is also 

based on, is not limited to the antitrust context.

Appellees also contend that there are no applicable exceptions to the Noerr-Pennington doctrine regarding Salem’s 

claims. First, Jorn, Malone, and Sickel contend that the U.S. 

Supreme Court has rejected any “conspiracy” exception to 

antitrust claims. Second, all appellees argue that the “sham” 

exception does not apply.

Alternatively, some of the appellees argue that they are 

entitled to immunity under Nebraska’s Political Subdivisions 

Tort Claims Act and the Parker doctrine.8

(b) Principles of 

Noerr-Pennington Doctrine

We recently considered the Noerr-Pennington doctrine in 

ACI Worldwide Corp. v. Baldwin Hackett & Meeks.9 In that 

case, we determined that the plaintiff was not entitled to 

immunity from the defendant’s counterclaims, regarding damages from the plaintiff’s tortious interference claims and antitrust activities, because the Noerr-Pennington doctrine is an 

affirmative defense that the plaintiff had waived by failing to 

timely assert it. Our decision in ACI Worldwide Corp. required 

this court to examine the development of the Noerr-Pennington

doctrine in its application to private individual’s interactions 

with the judicial branch only.

However, the Noerr-Pennington doctrine’s application to 

judicial proceedings came significantly later than its creation 

in the context of petitioning the legislative and executive 

branches.10 Accordingly, we briefly examine the principles 

8 See Parker v. Brown, 317 U.S. 341, 63 S. Ct. 307, 87 L. Ed. 2d 315 

(1943).

9 ACI Worldwide Corp. v. Baldwin Hackett & Meeks, 296 Neb. 818, 896 

N.W.2d 156 (2017).

10 See California Transport v. Trucking Unlimited, 404 U.S. 508, 92 S. Ct. 

609, 30 L. Ed. 2d 642 (1972).
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relevant to the Noerr-Pennington doctrine’s application to private citizens’ actions of petitioning the government.

As we recognized in ACI Worldwide Corp., the NoerrPennington doctrine developed as a result of two decisions by 

the U.S. Supreme Court: Eastern R. Conf. v. Noerr Motors,

11

and Mine Workers v. Pennington.

12 In Noerr Motors, a collective of truckers sued several railroad companies, alleging that the railroads had violated the Sherman Act through 

an advertising campaign which was designed to destroy the 

trucking industry by influencing legislators and governors to 

only enact laws harmful to the trucking industry and damage 

its public image. The Supreme Court held that the Sherman 

Act did not apply to a private citizen’s conduct undertaken 

to influence government action, because the Sherman Act’s 

intended purpose was to regulate business, not political activities.13 This was true even if the conduct by which citizens 

attempted to influence governmental regulation was undertaken for the sole purpose of destroying competition, involved 

unethical business practices, or was specifically intended to 

hurt competitors.14

In Pennington, a coal company claimed antitrust violations against the trustees of a coal miners’ union, alleging 

that it, along with large coal companies, had lobbied the 

Secretary of Labor to establish a minimum wage in a contract 

market that would drive small coal companies out of business. In both Noerr Motors and Pennington, the Supreme 

Court found the defendants immune from liability under the 

Sherman Act.

The Supreme Court explained in Pennington that “Noerr

shields from the Sherman Act a concerted effort to influence 

public officials regardless of intent or purpose” and expanded 

11 Noerr Motors, supra note 2.

12 Pennington, supra note 2.

13 Noerr Motors, supra note 2.

14 Id.
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the application of Noerr Motors to lobbying efforts directed 

at executive agencies.15

Since Noerr Motors and Pennington, the Supreme Court has 

extended the doctrine to petitions before administrative agencies and courts.16 Additionally, it has granted Noerr-Pennington

immunity “to a wide range of activities in addition to traditional lobbying, including . . . sales and marketing efforts[] and 

court litigation.”17

[3] In Columbia v. Omni Outdoor Advertising, Inc.,

18 the 

Supreme Court further refined Noerr Motors and Pennington

to stand for the proposition that “[t]he federal antitrust laws 

. . . do not regulate the conduct of private individuals in seeking anticompetitive action from the government.” In that case, 

the Supreme Court applied these principals to lobbying efforts 

directed at a municipal government.19

[4] The U.S. Supreme Court predicated its holding in Noerr 

Motors on the First Amendment’s petition clause and its statutory interpretation of the Sherman Act.20 It reasoned:

In a representative democracy such as this, [the 

Legislative and Executive] branches of government act 

on behalf of the people and, to a very large extent, the 

whole concept of representation depends upon the ability of the people to make their wishes known to their 

representatives. To hold that the government retains the 

15 Pennington, supra note 2, 381 U.S. at 670.

16 See California Transport, supra note 10. See, also, Davric Maine Corp. v. 

Rancourt, 216 F.3d 143 (1st Cir. 2000).

17 Doron Precision Systems, Inc. v. FAAC, Inc., 423 F. Supp. 2d 173, 189 

(S.D.N.Y. 2006). See, also, Columbia v. Omni Outdoor Advertising, Inc., 

499 U.S. 365, 111 S. Ct. 1344, 113 L. Ed. 2d 382 (1991).

18 Omni Outdoor Advertising, Inc., supra note 17, 499 U.S. at 379-80.

19 Id.

20 See Cardtoons v. Major League Baseball Players Ass’n, 208 F.3d 885 

(2000), citing Noerr Motors, supra note 2. See, also, Omni Outdoor 

Advertising, Inc., supra note 17.
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power to act in this representative capacity and yet hold, 

at the same time, that the people cannot freely inform 

the government of their wishes would impute to the 

Sherman Act a purpose to regulate, not business activity, but political activity, a purpose which would have 

no basis whatever in the legislative history of that Act. 

[Additionally], and of at least equal significance, such a 

construction of the Sherman Act would raise important 

constitutional questions. The right of petition is one of 

the freedoms protected by the Bill of Rights, and we 

cannot, of course, lightly impute to Congress an intent to 

invade these freedoms.21

The Supreme Court later reconciled these two principles by 

explaining that its interpretation of the Sherman Act was “in 

the light of the First Amendment’s Petition Clause.”22

While the U.S. Supreme Court has only explicitly applied 

immunity under the Noerr-Pennington doctrine in the antitrust 

context, many states have adopted and applied the NoerrPennington doctrine to state antitrust claims,23 as well as other 

21 Noerr Motors, supra note 2, 365 U.S. at 137-38.

22 FTC v. Superior Court Trial Lawyers Assn., 493 U.S. 411, 424, 110 S. Ct. 

768, 107 L. Ed. 2d 851 (1990).

23 See, Blank v. Kirwan, 39 Cal. 3d 311, 703 P.2d 58, 216 Cal. Rptr. 718 

(1985); Harrah’s Vicksburg Corp. v. Pennebaker, 812 So. 2d 163 (Miss. 

2001) (state antitrust and tort claims alleging restraint of trade, civil 

conspiracy, and tortious interference); Defino v. Civic Center Corp., 780 

S.W.2d 665 (Mo. App. 1989) (state antitrust and tort claims); Green 

Mountain Realty v. Fifth Estate Tower, 161 N.H. 78, 13 A.3d 123 (2010) 

(claim asserted under New Hampshire’s Consumer Protection Act); Good 

Hope Hosp. v. Dept. of Health, 174 N.C. App. 266, 620 S.E.2d 873 (2005) 

(state antitrust and tort claims); Black Hills Jewelry Mfg. Co. v. Felco 

Jewel Ind., 336 N.W.2d 153 (S.D. 1983); Anderson Development Co. v. 

Tobias, 116 P.3d 323 (Utah 2005) (state antitrust and tort claims). See, 

also, Astoria Entertainment, Inc. v. DeBartolo, 12 So. 3d 956 (La. 2009) 

(generally applicable to state claims); Kellar v. VonHoltum, 568 N.W.2d 

186 (Minn. App. 1997) (suggesting Noerr-Pennington might apply, under 

Minnesota law, beyond antitrust context); Amer. Med. Transp. v. CurtisUniversal, 154 Wis. 2d 135, 452 N.W.2d 575 (1990).
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claims.24 Many courts have reasoned that the Noerr-Pennington

doctrine’s reliance on the First Amendment’s petition clause 

provides justification to extend such immunity to other claims, 

because “there is no reason that the constitutional protection of 

the right to petition should be less compelling in the context 

of claims that arise outside of the scope of antitrust laws.”25 In 

fact, in ACI Worldwide Corp., we recognized the extension of 

the Noerr-Pennington doctrine to nonantitrust claims.26

Further, the Noerr-Pennington doctrine applies in state 

court and to state-law claims because it is grounded on First 

Amendment rights to petition the government.27 The First 

Amendment to the U.S. Constitution guarantees “the right 

24 See, Ex Parte Simpson, 36 So. 3d 15 (Ala. 2009) (state tort causes of 

action); Gunderson v. University of Alaska, Fairbanks, 902 P.2d 323 

(Alaska 1995) (state contract claim); Zeller v. Consolini, 59 Conn. App. 

545, 758 A.2d 376 (2000) (state tort claim for tortious interference with 

business relationship); Sandholm v. Kuecker, 405 Ill. App. 3d 835, 942 

N.E.2d 544, 347 Ill. Dec. 341 (2010) (state claims), reversed on other 

grounds 2012 IL 111443, 962 N.E.2d 418, 356 Ill. Dec. 733 (2012); Bond 

v. Cedar Rapids Television Co., 518 N.W.2d 352 (Iowa 1994) (state tort 

claim); Grand Communities, Ltd. v. Stepner, 170 S.W.3d 411 (Ky. App. 

2004) (state tort claims stemming from zoning decisions); Arim v. General 

Motors Corp., 206 Mich. App. 178, 520 N.W.2d 695 (1994) (state tort 

claims); Structure Bldg. Corp. v. Abella, 377 N.J. Super. 467, 873 A.2d 

601 (2005) (state tort claims); Arts4All Ltd. v. Hancock, 25 A.D.3d 453, 

810 N.Y.S.2d 15 (2006) (state tort claim); Alves v. Hometown Newspapers, 

Inc., 857 A.2d 743 (R.I. 2004) (common-law tort claims); RRR Farms, 

Ltd. v. American Horse Protection, 957 S.W.2d 121 (Tex. App. 1997) 

(state tort claims); Titan America, LLC v. Riverton Inv. Corp., 264 Va. 

292, 569 S.E.2d 57 (2002) (state claims for conspiracy and business torts); 

Perrine v. E.I. du Pont de Nemours and Co., 225 W. Va. 482, 694 S.E.2d 

815 (2010) (noting Noerr-Pennington generally applied to state claims, 

but holding that doctrine did not apply in particular circumstances of 

this case).

25 Astoria Entertainment, Inc., supra note 23, 12 So. 3d at 964. See, e.g.,

Hufsmith v. Weaver, 817 F.2d 455 (8th Cir. 1987); We, Inc. v. City of 

Philadelphia, 174 F.3d 322 (3d Cir. 1999); Kellar, supra note 23.

26 ACI Worldwide Corp., supra note 9.

27 Harrah’s Vicksburg Corp., supra note 23.
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of the people . . . to petition the Government for a redress 

of grievances.”

[5] Nevertheless, in the context of antitrust laws, Omni 

Outdoor Advertising, Inc. reiterated that the U.S. Supreme 

Court’s ultimate conclusion in Noerr Motors was based on 

the fact that “antitrust laws, ‘tailored as they are for the business world, are not at all appropriate for application in the 

political arena.’”28 Under this reasoning, federal and state 

courts have applied the Noerr-Pennington doctrine to FTCA 

cases,29 state unfair trade practices acts,30 and a state consumer protection act.31 The extension of the doctrine to state 

laws in this context is based on state statutory requirements 

to construe state antitrust laws in accordance with their federal counterparts.32

In Rodgers v. F.T.C.,

33 the petitioner contended that opponents of an “initiative measure had combined ‘in both vertical 

and horizontal agreements, to make price representations to 

the public that constituted unfair and deceptive trade practices’” under § 5 of the FTCA, codified at 15 U.S.C. § 45, 

as well as the Sherman Act. The Federal Trade Commission 

applied the Noerr-Pennington doctrine to the claims with 

the similar reasoning that “‘[t]he proscriptions of Section 5 

of the FTC[A], as we view them, like the proscriptions of 

the Sherman Act, are tailored for the business world, not for 

28 Omni Outdoor Advertising, Inc., supra note 17, 499 U.S. at 380, citing 

Noerr Motors, supra note 2.

29 See, Rodgers v. F.T.C., 492 F.2d 228 (9th Cir. 1974); Union Oil Company 

of California, 138 F.T.C. 1 (2004).

30 See, e.g., Bayou Fleet, Inc. v. Alexander, 234 F.3d 852 (5th Cir. 2000); 

People ex rel. Gallegos v. Pacific Lumber, 158 Cal. App. 4th 950, 70 Cal. 

Rptr. 3d 501 (2008). See, also, Green Mountain Realty, supra note 23.

31 See, Suburban Restoration Co., Inc. v. ACMAT Corp., 700 F.2d 98 (2d Cir. 

1983); Green Mountain Realty, supra note 23.

32 See Green Mountain Realty, supra note 23.

33 Rodgers, supra note 29, 492 F.2d at 229.
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the political arena.’”34 The Ninth Circuit Court of Appeals 

affirmed the Federal Trade Commission’s decision, because 

all parties interested in the outcome of an initiative measure 

had an “equal right to submit their arguments to the electorate 

at large.”35

In Green Mountain Realty v. Fifth Estate,

36 the New 

Hampshire Supreme Court considered whether the NoerrPennington doctrine applied to claims brought under its consumer protection act. The court noted that New Hampshire’s 

Consumer Protection Act was analogous to and statutorily 

required to be construed consistently with § 5(a)(1) of the 

FTCA, as amended, which states, “Unfair methods of competition in or affecting commerce, and unfair or deceptive acts 

or practices in or affecting commerce, are hereby declared 

unlawful.”37

Just as the Rodgers court and the Federal Trade Commission 

held that the Noerr-Pennington doctrine applied to claims 

brought under the FTCA, the court in Green Mountain Realty

held that the Noerr-Pennington doctrine applied to claims 

brought under New Hampshire’s Consumer Protection Act. 

The court ruled that even conduct which is deemed to be an 

unfair or deceptive practice within the act would be immune 

if it occurred in a political setting. “‘Fraudulent or deceptive 

conduct can be actionable under the [Consumer Protection 

Act] only if it occurs in a business setting involving the advertising or sale of a commodity or service as part of the day-today business of the defendant.’”38 The court too recognized 

that “the proscriptions of the [FTCA], ‘like the proscriptions 

34 Id. at 230.

35 Id. at 231.

36 Green Mountain Realty, supra note 23.

37 See id. See, also, 15 U.S.C. § 45.

38 Green Mountain Realty, supra note 23, 161 N.H. at 87, 13 A.3d at 131, 

quoting Brzica v. Trustees of Dartmouth College, 147 N.H. 443, 791 A.2d 

990 (2002).
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of the Sherman Act, are tailored for the business world, not for 

the political arena.’”39

[6] However, the Noerr-Pennington doctrine is not without 

its limitations. In Omni Outdoor Advertising, Inc., the U.S. 

Supreme Court held that there was a “‘sham’ exception” to 

private individuals’ petitioning for anticompetitive action from 

their government.40 The “sham” exception involves attempts 

to influence public officials for the sole purpose of expense or 

delay.41 Conversely, the Court has rejected any application of 

a “‘conspiracy’ exception” to the Noerr-Pennington doctrine 

specifically in the context of antitrust laws.42

In Omni Outdoor Advertising, Inc., the defendant had argued 

for both a broad construction of the conspiracy exception, 

which applies whenever a public official and private citizen 

conspired to restrain trade, and a narrow construction, which 

applies only when the conspiracy is to accomplish action not 

in the public interest or by corrupt means.43 The Court rejected 

both constructions of the exception to the Noerr-Pennington

doctrine:

“It would be unlikely that any effort to influence legislative action could succeed unless one or more members 

of the legislative body became . . . ‘co-conspirators’” in 

some sense with the private party urging such action. . 

. . And if the invalidating “conspiracy” is limited to one 

that involves some element of unlawfulness (beyond 

mere anticompetitive motivation), the invalidation 

would have nothing to do with the policies of the antitrust laws.44

39 Id. at 86-87, 13 A.3d at 129, quoting Rodgers, supra note 29.

40 Omni Outdoor Advertising, Inc., supra note 17, 499 U.S. at 380. Accord 

ACI Worldwide Corp., supra note 9.

41 Id.

42 Id., 499 U.S. at 382.

43 Omni Outdoor Advertising, Inc., supra note 17.

44 Id., 499 U.S. at 383 (emphasis in original) (citation omitted).
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[7] Since Omni Outdoor Advertising, Inc., courts have continued to reject a conspiracy exception to the Noerr-Pennington

doctrine in the context of antitrust claims.45 However, courts 

have applied the conspiracy exception to the doctrine when 

claims are based solely on the First Amendment’s petition 

clause, not antitrust laws, because the First Amendment does 

not entitle individuals to absolute immunity for their speech.46

As such, the line to determine when the conspiracy exception 

applies is based not on whether the claim is antitrust in nature, 

but on which theory the application of the Noerr-Pennington

doctrine is predicated on, either the First Amendment or the 

antitrust laws.

(c) Salem’s Claims Under NCPA

Salem alleges violations of §§ 59-1602 and 59-1603. Before 

examining these statutes, however, we note Neb. Rev. Stat. 

§ 59-829 (Reissue 2010) provides that when “any provision 

of Chapter 59 is the same as or similar to the language of a 

federal antitrust law, the courts of this state in construing such 

sections or chapter shall follow the construction given to the 

federal law by the federal courts.”

[8] Section 59-1602 states that “[u]nfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce shall be unlawful.” We have 

stated that § 59-1602 mirrors the language of 15 U.S.C. 

§ 45(a)(1).47

[9] Section 59-1603 provides that “[a]ny contract, combination, in the form of trust or otherwise, or conspiracy in restraint 

of trade or commerce shall be unlawful.” In State ex rel. 

45 See, e.g., Coll v. First American Title Ins. Co., 642 F.3d 876 (10th Cir. 

2011).

46 See, e.g., Cardtoons, supra note 20; Astoria Entertainment, Inc., supra

note 23; Westborough Mall v. City of Cape Girardeau, MO., 693 F.2d 733 

(8th Cir. 1982).

47 Moats v. Republican Party of Neb., 281 Neb. 411, 796 N.W.2d 584 (2011). 

See 15 U.S.C. § 45(a)(1).
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Douglas v. Associated Grocers,

48 we construed § 59-1603 in 

accordance with the U.S. Supreme Court’s interpretation of 15 

U.S.C. § 1, and we stated that the NCPA is “the state version 

of the Sherman Antitrust Act.”

[10,11] The NCPA is Nebraska’s version of the Sherman 

Act, but it also encompasses portions of other federal antitrust laws, including the FTCA from which § 59-1602 is 

modeled. Further, the act was intended to be an antitrust 

measure to protect Nebraska consumers from monopolies and 

price-fixing conspiracies.49 Accordingly, just as previous courts 

have asserted that the proscriptions of the FTCA and the 

Sherman Act are tailored for the business world, not for the 

political arena, we find that proscriptions of the NCPA are 

tailored for the business world, not for the political arena. As 

a result, we hold that Salem’s claim that appellees violated the 

NCPA is barred under the immunities extended by the NoerrPennington doctrine.

While Salem’s allegations are of unlawful conduct in the 

political arena, its claimed harm is antitrust in nature under 

the NCPA. Accordingly, its theory of recovery is predicated 

not on the First Amendment but on the interpretation of antitrust laws. Therefore, based on Omni Outdoor Advertising, 

Inc., there is not a viable exception for a conspiracy between 

the appellees and public officials, irrespective of any alleged 

corrupt or unlawful means which may have resulted in harm 

to Salem. As a result, the conspiracy exception to the NoerrPennington doctrine is not applicable to the appellees.

(d) Appellees Sufficiently Raised 

Noerr-Pennington Doctrine

[12-14] As we stated above, we recently recognized 

that “the Noerr-Pennington defense is an affirmative 

48 State ex rel. Douglas v. Associated Grocers, 214 Neb. 79, 83, 332 N.W.2d 

690, 693 (1983).

49 Arthur v. Microsoft Corp., 267 Neb. 586, 676 N.W.2d 29 (2004).
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defense.”50 An affirmative defense may be asserted in a 

motion filed pursuant to § 6-1112(b)(6) when the defense 

appears on the face of the complaint.51 CGB, Jorn, Malone, 

and Sickel explicitly raised the doctrine in their motion to 

dismiss. Cromer, Joy, Keller, and Radatz, however, did not 

raise the defense. Nevertheless, the court applied immunity 

under the doctrine to all appellees. Salem did not assign 

error to the court’s application of the Noerr-Pennington doctrine to Cromer, Joy, Keller, and Radatz. In the absence of 

plain error, an appellate court considers only claimed errors 

which are both assigned and discussed.52 We find no plain 

error here.

[15] The Nebraska Rules of Pleading in Civil Actions, 

like the federal rules, have a liberal pleading requirement for 

both causes of action and affirmative defenses, but the touchstone is whether fair notice was provided.53 Because Salem 

received fair notice that the Noerr-Pennington defense was 

being raised by CGB, Jorn, Malone, and Sickel, which were 

similarly situated to Cromer, Joy, Keller, and Radatz, Salem 

was not prejudiced by the latter’s failure to assert the defense. 

Accordingly, the Noerr-Pennington doctrine was sufficiently 

raised regarding all appellees.

[16] Because we find that the appellees are immune from 

Salem’s NCPA claims under the Noerr-Pennington doctrine, 

we need not address their remaining assertions of immunity 

from the NCPA claims. An appellate court is not obligated to 

engage in an analysis that is not necessary to adjudicate the 

case and controversy before it.54

50 ACI Worldwide Corp., supra note 9, 296 Neb. at 863, 896 N.W.2d at 188.

51 deNourie & Yost Homes v. Frost, 295 Neb. 912, 893 N.W.2d 669 (2017).

52 In re Trust of Rosenberg, 273 Neb. 59, 727 N.W.2d 430 (2007).

53 Funk v. Lincoln-Lancaster Cty. Crime Stoppers, 294 Neb. 715, 885 

N.W.2d 1 (2016).

54 Estermann v. Bose, 296 Neb. 228, 892 N.W.2d 857 (2017).
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2. Claims of Aiding and Abetting 

 Conspiracy Require Und

Tort to Be Actio

Salem argues that the court erred in ruling that its claims of 

civil conspiracy and aiding and abetting required an underlying tort to be actionable. It argues that under our prior case 

law, only an underlying wrongful conduct was required, and 

that that statement of the law was inadvertently changed. 

Accordingly, Salem asserts that a party is liable for the damages 

resulting from any wrongful or tortious act that they encourage 

or assist in the performance of, even if that party itself did not 

commit any underlying wrongful acts. Essentially, it contends 

that the appellees are each liable for the city council’s and 

their own alleged violations of the NCPA and the NOMA, and 

for otherwise withholding information from the public.

[17] A civil conspiracy is a combination of two or more 

persons to accomplish by concerted action an unlawful or 

oppressive object, or a lawful object by unlawful or oppressive means.55 A claim of civil conspiracy requires the plaintiff 

to establish that the defendants had an expressed or implied 

agreement to commit an unlawful or oppressive act that constitutes a tort against the plaintiff.56

[18,19] Similarly, a claim of aiding and abetting is that 

“‘in addition to persons who actually participate in [concerted 

wrongful action], persons who aid, abet, or procure the commission thereof, are subject to a civil action therefor.’”57 Both 

of these claims are essentially methods for imposing joint and 

several liability on all actors who committed a tortious act or 

any wrongful acts in furtherance thereof.58

55 United Gen. Title Ins. Co. v. Malone, 289 Neb. 1006, 858 N.W.2d 196 

(2015).

56 deNourie & Yost Homes, supra note 51.

57 Bergman v. Anderson, 226 Neb. 333, 338, 411 N.W.2d 336, 340 (1987).

58 See, Koster v. P & P Enters., 248 Neb. 759, 539 N.W.2d 274 (1995); 

Bergman, supra note 57. See, also, Malone, supra note 55.
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[20] Salem argues that our decision in Bergman v. Anderson,

59

establishes that there does not need to be an underlying actionable tort, or even wrong, to sustain an aiding and abetting 

claim. Instead, it contends our holding in Bergman was that 

acts of aiding, abetting, and procuring the commission of 

wrongful conduct that causes damages are themselves the 

actionable wrongful conduct, and, therefore, aiding and abetting is an independent tort. We cannot agree with this interpretation. Instead, we held in Bergman that the plaintiff had 

“stated sufficient facts to support a theory that [the defendant] acted in concert with others and aided and abetted in 

the commission of an assault or battery [by] alleg[ing] that 

those attacking [the plaintiff] were under [the defendant’s] 

‘direction.’”60 Accordingly, the underlying conduct was the 

actionable tort of assault and battery.

[21,22] Further, our precedent is clear regarding claims of 

civil conspiracy: a “conspiracy” is not a separate and independent tort in itself, but, rather, is dependent upon the existence 

of an underlying tort.61 Without such underlying tort, there can 

be no claim for relief for a conspiracy to commit the tort.62

We reject Salem’s assertion that a statutory violation alone 

is sufficient to sustain a claim of civil conspiracy or aiding 

and abetting.

Salem cites Eicher v. Mid America Fin. Invest. Corp.,

63 to 

argue that unlawful conduct under the NCPA, and by inference the NOMA, could support its claims. In Eicher, we 

concluded that the appellants were guilty of civil conspiracy 

because they had committed fraudulent misrepresentation 

59 Bergman, supra note 57.

60 Id. at 339, 411 N.W.2d at 341.

61 Malone, supra note 55.

62 Id.

63 Eicher v. Mid America Fin. Invest. Corp., 275 Neb. 462, 748 N.W.2d 1 

(2008).
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and violated the NCPA.64 Accordingly, the conspiracy to 

commit the underlying tort, fraudulent misrepresentation, 

made each defendant in that case jointly and severally liable 

for all wrongful conduct committed in furtherance thereof, 

including violations of the NCPA.65 Therefore, Salem’s reliance upon Eicher is misplaced.

The only underlying conduct Salem asserts are violations of 

the NCPA and the NOMA. As stated above, such statutory violations alone are not sufficient to support claims of civil conspiracy or aiding and abetting. Therefore, we find that Salem 

failed to properly plead its claims of civil conspiracy or aiding 

and abetting.

3. Salem Failed to State Cla

Upon Which Relief 

Be Grant

Salem’s complaint alleges claims under the NCPA, aiding and abetting and civil conspiracy. As we have found, the 

appellees are entitled to immunity from Salem’s NCPA claims. 

Further, Salem’s claims of aiding and abetting and civil conspiracy require an underlying tort to be actionable and no such 

tort has been pled. Therefore, Salem has not stated claims 

upon which relief can be granted as a matter of law.

4. Salem’s Remaining As

of Error Are Without M

In its reply brief, Salem conceded that “[i]f dismissal is 

appropriate and Arguments 1 - 3 are not successful, there is no 

amending to be done in this case.”66 Accordingly, we do not 

address its assignment of error to the contrary.

Additionally, because we find that Salem failed to state a 

claim upon which relief could be granted and Salem conceded 

64 Id.

65 Id.

66 Reply brief for appellant at 17.
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that leave to amend would be futile, we need not address 

Salem’s assignment of error that the court failed to sustain its 

jury demand.

VI. CONCLUSION

The Noerr-Pennington doctrine provides immunity to 

appellees for petitioning the government to take action, even 

if such resulting action violated the NCPA. Further, claims of 

civil conspiracy and aiding and abetting require an underlying tort, not merely an underlying statutory violation, to be 

actionable. Salem failed to state a claim upon which relief 

could be granted because appellees were entitled to immunity under the Noerr-Pennington doctrine, and it alleged only 

underlying statutory violations. Further, Salem conceded that 

any amendment to its petition would be futile. Therefore, 

we affirm the court’s order dismissing Salem’s complaint 

with prejudice.

Affirm