PRESENT: All the Justices 

TITAN AMERICA, LLC, ET AL. 

v. Record No. 012554 OPINION BY JUSTICE ELIZABETH B. LACY 

 September 13, 2002 

RIVERTON INVESTMENT 

CORPORATION, ET AL. 

FROM THE CIRCUIT COURT OF FREDERICK COUNTY 

John E. Wetsel, Jr., Judge 

 In 1998 the appellant, Titan America, LLC, the successor to 

Carolinas Cement Company, G.P., t/a Roanoke Cement Company, 

(Titan)* sought to acquire land in Warren County to use as a 

warehousing and distribution site for its cement business. The 

appellees, Riverton Investment Corporation, Capitol Cement 

Corporation, and Riverton Corporation (collectively "Riverton"), 

a competing cement company and its affiliates, opposed Titan's 

plans by appearing before the local governing bodies including 

the board of zoning appeals and planning commission, initiating 

litigation in circuit court, and funding litigation undertaken 

by various Warren County residents. 

 While Titan ultimately secured the necessary land and 

permits to complete its project, Titan filed a motion for 

judgment against Riverton in October 1999 asserting, inter alia, 

claims of tortious interference with existing and potential 

 *

 The other appellants, Titan Atlantic Cement Industrial and 

Commercial Company, S.A., Inc. and Tarmac Cement, Inc. were 

general partners of the Carolinas Cement Company, G.P. and 

remain members of Titan America, LLC. 
economic relationships, conspiracy, and defamation based on the 

litigation filed or funded by Riverton. Following consideration 

of Riverton's demurrers, motion for partial summary judgment, 

and motions for stay of discovery relating to Titan's original 

and amended motions for judgment, the trial court ultimately 

entered judgment in favor of Riverton, holding that under the 

Noerr-Pennington doctrine none of the complained of litigation 

was objectively baseless, that discovery was not required, and 

that the alleged defamatory statements were made in the course 

of litigation and therefore were absolutely privileged. For the 

reasons that follow, we will affirm the judgment of the trial 

court. 

FACTS

A. Underlying Proceedings

 Titan originally sought to build its Warren County 

distribution facility on a site that it leased from Potomac 

Edison Company d/b/a Allegheny Power (Potomac Edison), but later 

purchased a site for the facility from the Economic Development 

Authority of Warren County and the town of Front Royal (EDA). 

The underlying litigation that forms the basis of Titan's motion 

for judgment in this case involved both sites. Riverton 

recruited the individual litigants involved in this litigation, 

Ramona Bowden, Carol and Benjamin Weddle, and Tommy R. and Joyce 

S. Fritts, and provided legal representation for them. Although 

2
Titan filed this action in Frederick County, on the recusal of 

the circuit court judge of Frederick County, the matter was 

heard by Judge John E. Wetsel, Jr. Judge Wetsel also heard all 

of the underlying proceedings at issue in this case. We recite 

the facts in relation to each of the proposed development sites. 

1. Potomac Edison Site 

In February 1999, Titan applied for a by-right use permit 

for its distribution facility on a site it leased from Potomac 

Edison. The deputy zoning administrator approved the by-right 

permit in March 1999. The following month Bowden and the 

Weddles appealed the administrator's decision to the Warren 

County Board of Zoning Appeals (BZA), asserting that the 

facility did not qualify as a by-right use and that the access 

road to the site could not be used for industrial purposes 

because it traversed agricultural land. After two public 

hearings, the BZA reversed the decision of the zoning 

administrator and also held that the existing road could be used 

for industrial purposes, but that Titan could not construct a 

new road through the agricultural area to service the industrial 

portion of the property.

Titan appealed the BZA's decision to deny the by-right 

permit to the circuit court. Bowden and the Weddles intervened 

in Titan's suit and also filed a separate appeal of the BZA's 

decision on the access road issue. In August 1999, the circuit 

3
court entered an order reversing the decision of the BZA, 

holding that Titan was entitled to the by-right permit and that 

the BZA erred in determining that Titan had a grandfathered 

right to use the access road for industrial purposes. 

While the BZA was considering the access road issue on 

remand from the circuit court, Titan and Potomac Edison filed an 

application for a variance to allow industrial use of the access 

road. The BZA denied the variance and made a finding strictly 

limiting Titan's grandfathered non-conforming use of the access 

road. Titan and Potomac Edison appealed those decisions to the 

circuit court, which upheld the BZA's determinations. 

Titan filed a petition for appeal with this Court regarding 

the use of the access road, which was refused. This Court 

awarded Bowden and the Weddles an appeal on the by-right permit 

issue, but dismissed the appeal as moot in June 2000 because 

Titan terminated the Potomac Edison lease and abandoned its 

plans to develop that site.

2. EDA Site 

 In the spring and summer of 1999, Titan began to consider 

other sites for its facility, including a site owned by EDA at 

the Kelley Industrial Park in Warren County. EDA voted to 

approve the sale to Titan on September 3, 1999. On September 

13, Riverton filed a petition for mandamus against the EDA, 

alleging that the EDA violated Code § 2.1-343 of the Virginia 

4
Freedom of Information Act by not giving proper notice of its 

intention to vote on the sale of the land. Riverton also sought 

a declaratory judgment and injunction against the sale of the 

site to Titan asserting that the sale was contrary to the 

criteria established by statute and EDA rules for such a sale. 

EDA settled this action by agreeing to comply with the 

provisions of the Virginia Freedom of Information Act and to 

vote again on the sale of the land on October 15.

 On September 27, 1999, EDA informed Riverton that it had 

rescheduled the vote for October 7 and Riverton filed another 

action against EDA to enforce the settlement agreement reached 

in the prior mandamus proceeding. The circuit court entered a 

decree enjoining EDA from voting on the sale of the land to 

Titan before October 15.

 EDA set November 12 as the date for the vote on the sale of 

the land. Riverton and the Fritts filed a complaint seeking a 

declaratory judgment and an injunction preventing EDA from 

selling the site to Titan. They asserted, as they had in the 

prior action, that sale of the land to Titan did not meet the 

criteria established by statute and EDA rules for such a sale. 

Following a hearing on the request for a temporary injunction, 

the circuit court entered an order denying Riverton's and the 

Fritts' request for a temporary injunction. Applying a liberal 

interpretation of the Industrial Development and Revenue Bond 

5
Act, Code §§ 15.2-4900 through -4920, the circuit court 

concluded that a facility, new to a community, qualified under 

the Act as a new industry in the Commonwealth, that EDA's 

variance from its own guidelines did not make the sale arbitrary 

and capricious because such guidelines can be altered by EDA at 

any time, and that the sale did not constitute special 

legislation merely because it benefited Titan. Finally, in 

denying the temporary injunction, the trial court stated that 

"[w]ithout proof of damage particular to [Riverton and the 

Fritts] of an irreparable character, the plaintiffs' standing to 

maintain this action is called into question." EDA voted to 

sign the contract of sale to Titan on November 12, 1999, and the 

sale was completed the same day.

 On October 8, 1999, prior to the completion of the sale of 

the EDA site to Titan, the zoning administrator approved Titan's 

application for a by-right permit for its facility to be built 

on the EDA property. The Planning Commission approved the byright use of the property on October 13. Riverton and the 

Fritts appealed the zoning administrator's and the Planning 

Commission's decisions to the BZA. On December 1, 1999, the BZA 

concluded that it lacked jurisdiction to review the Planning 

Commission's by-right determination, but deferred its ruling on 

the issue whether the zoning administrator properly approved the 

by-right application. 

6
 On December 8, 1999, Titan brought an action against the 

BZA, Riverton, and the Fritts asking the court to direct the BZA 

to terminate the stay and dismiss the appeal of the zoning 

administrator's and Planning Commission's decisions and to 

enjoin Riverton and the Fritts from further litigating the byright issue regarding the EDA site, asserting that that issue 

was resolved in the earlier case regarding the Potomac Edison 

site. The circuit court denied Titan's requests, finding that 

the current proceedings involved a different site and different 

parties. 

 A month later, the BZA concluded that Riverton and the 

Fritts did not have standing to appeal the zoning 

administrator's decision to the BZA. Riverton and the Fritts 

appealed this decision. The circuit court remanded the issue of 

standing to the BZA, but rejected the contention raised by 

Riverton and the Fritts that Titan did not have the right to 

seek the by-right permit.

 On remand, the BZA determined that the Fritts had standing 

to appeal the administrative decisions to the BZA, but that 

Riverton did not. The BZA also concluded that the proposed 

facility was a by-right use of the EDA site and consistent with 

the zoning ordinance. Titan appealed the BZA's determination 

regarding the Fritts' standing and the Fritts appealed the BZA's 

conclusion regarding the use of the site for Titan's facility. 

7
On May 31, 2000, the circuit court affirmed the decision of the 

BZA. The Fritts appealed the circuit court order to this Court. 

An appeal was awarded and the decision of the circuit court was 

affirmed by an opinion issued September 14, 2001. Fritts v. 

Carolinas Cement Co., 262 Va. 401, 551 S.E.2d 336 (2001).

B. This Litigation 

 Titan filed this suit on October 28, 1999 alleging tortious 

interference with contract and business expectancy, statutory 

and common law conspiracy and defamation based on the litigation 

pursued and financed by Riverton. Titan also filed requests for 

admissions, interrogatories and requests for documents. 

Riverton filed a demurrer and a motion for a protective order, 

asserting that the claim was barred by the Noerr-Pennington

doctrine. Although Riverton's first demurrer was overruled by 

the trial court, the trial court granted Riverton's motion for 

summary judgment in part, finding that the underlying 

proceedings were brought with probable cause, but deferred 

ruling on Titan's arguments that such proceedings were 

nevertheless sham proceedings because Riverton orchestrated the 

litigation through the use of straw persons. The trial court 

granted Riverton's motions to prohibit discovery concerning its 

motivation for pursuing the litigation and granted a stay on 

further discovery pending its ruling on the straw persons issue. 

After further briefing by the parties, the trial court entered 

8
an order on June 6, 2000, holding that Riverton's use of straw 

persons was not a fraud upon the tribunal and did not constitute 

sham litigation depriving Riverton of the protection of the 

Noerr-Pennington doctrine. 

 Titan filed an amended motion for judgment and second 

amended motion for judgment, adding claims of abuse of process 

and fraud. Riverton's demurrers to both pleadings were 

sustained in part and denied in part and the trial court 

dismissed with prejudice all claims to which Riverton's 

demurrers were sustained. The trial court entered an order 

granting Titan's motion to non-suit all remaining claims. We 

awarded Titan an appeal. 

 On appeal, Titan asserts that the Noerr-Pennington doctrine 

should not be applied to the causes of action pled in this case, 

that even if the doctrine is applied, the trial court applied 

the wrong test, that Titan's allegations of sham activity by 

Riverton were sufficient to withstand a demurrer, that the trial 

court should not have considered whether Riverton was entitled 

to the protection of the Noerr-Pennington doctrine without 

discovery and further development of the evidence, and that the 

trial court erred in holding that defamatory statements made by 

Riverton were entitled to an absolute privilege. We will 

address these issues in order. 

DISCUSSION

9
A. The Noerr-Pennington Doctrine 

1. Application to state law conspiracy and business tort 

claims 

 The Noerr-Pennington doctrine was initially developed in 

the United States Supreme Court cases of Eastern Railroad 

Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127 

(1961), and United Mine Workers of America v. Pennington, 381 

U.S. 657 (1965). In those cases, the Supreme Court held that 

actions taken to influence legislative or executive action 

cannot be the basis for a violation of the Sherman Antitrust Act 

unless such activities were "a mere sham" designed to disguise 

actions directed towards interfering with the business 

relationships of a competitor. Noerr, 365 U.S. at 144. This 

doctrine is based on the federal constitutional rights to free 

speech and to petition the government. In subsequent cases, the 

doctrine has been expanded to apply to actions taken in 

adjudicatory proceedings before administrative agencies and 

courts. California Motor Transp. Co. v. Trucking Unlimited, 404 

U.S. 508, 510-11 (1972). 

 Titan argues that the Noerr-Pennington doctrine should not 

be extended to state law claims of the type raised in this case 

because the doctrine was developed in the context of the federal 

antitrust laws and because Virginia law affords a defendant 

10
sufficient defenses "without the need to inject an additional 

defense based on the Noerr-Pennington doctrine." 

 The Noerr-Pennington doctrine arises from rights afforded 

by the First Amendment to the United States Constitution and 

does not limit protection of those rights to causes of action 

involving antitrust matters. See, e.g., Pacific Gas & Elec. Co. 

v. Bear Stearns & Co., 791 P.2d 587, 594 (Cal. 1990); Protect 

Our Mountain Env't v. County of Jefferson, 677 P.2d 1361, 1365-

66 (Colo. 1984); Harrah's Vicksburg Corp. v. Pennebaker, 812 So. 

2d 163, 171 (Miss. 2001). We have previously acknowledged that 

the Noerr-Pennington doctrine is concerned with efforts to 

affect the decisions of legislative, judicial, and executive 

bodies in the field of public policy matters. Lockheed Info. 

Mgmt. Sys. Co., Inc. v. Maximus, Inc., 259 Va. 92, 104, 524 

S.E.2d 420, 426-27 (2000) (citing F. Buddie Contracting, Inc. v. 

Seawright, 595 F. Supp. 422 (N.D. Ohio 1984)). While we have 

rejected the application of the doctrine when the government is 

acting in its proprietary capacity under the "commercial 

activity exception," the rationale underlying that exclusion 

does not exist in this case. Id., 524 S.E.2d at 427. This case 

involves actions seeking to enforce or challenge governmental 

decisions through the use of the courts and, thus, falls 

squarely within the constitutional protections recognized by the 

Noerr-Pennington doctrine. We conclude that the protection of 

11
First Amendment rights provided by application of the NoerrPennington doctrine should be available to a defendant in causes 

of action for tortious interference with business expectancy and 

conspiracy, and that the trial court did not err in applying the 

Noerr-Pennington doctrine in this case. 

2. Appropriate test for determination of sham litigation 

 Titan asserts that, even if the Noerr-Pennington doctrine 

is applicable in this case, the trial court applied the wrong 

test in considering whether the litigation at issue was sham 

litigation. The trial court utilized the two-part test set out 

in Professional Real Estate Investors, Inc. v. Columbia Pictures 

Industries, Inc., 508 U.S. 49, 60 (1993) (PRE). Under that 

test, a court first determines whether the challenged litigation 

was objectively baseless. Id. A case is objectively baseless 

if the proponent of the litigation lacked probable cause to 

institute the unsuccessful lawsuit. Id. Probable cause in this 

context means a " 'reasonable belief that there is a chance that 

[a] claim may be held valid upon adjudication.' " Id. at 62-63 

(quoting Hubbard v. Beatty & Hyde, Inc., 178 N.E.2d 485, 488 

(Mass. 1961)). If such litigation is objectively baseless, the 

court then makes a subjective inquiry into whether the 

litigation was filed with an anti-competitive purpose. Id. at 

60. If the litigation was not objectively baseless, the second 

inquiry is not necessary. Id. In this case, the trial court 

12
concluded that none of the underlying actions was objectively 

baseless and, accordingly, did not consider whether the actions 

were subjectively pursued for anti-competitive purposes. 

 Titan argues that the PRE analysis should not be applied in 

this case because PRE involved a single underlying action, not a 

series of proceedings as in this case. Rather, Titan asserts 

that the trial court should have applied the test suggested by 

language in California Motor Transport, a case involving 

multiple underlying actions. 404 U.S. at 515. Titan argues, 

based on California Motor Transport, that courts must apply a 

subjective test when multiple filings are alleged to have been 

"pursued to harass, delay and coerce a competitor." Titan 

describes that test as looking at "the totality of the filings 

and determin[ing] whether they were truly undertaken out of a 

genuine interest in redressing grievances, or whether they were 

merely a part of a pattern or practice of successive filings 

undertaken for the purpose of harassing and injuring a 

competitor." Whether there was probable cause to file an action 

is irrelevant in this test, according to Titan. Therefore, 

Titan argues that the trial court in this case should not have 

looked to whether the litigation undertaken directly or 

indirectly by Riverton was objectively baseless but rather 

should have considered whether the litigation was pursued for 

the purpose of harassing and injuring its competitor. 

13
 We disagree with Titan and its interpretation of California 

Motor Transport. The United States Supreme Court in PRE

considered California Motor Transport and other cases decided 

since Noerr and concluded that "the sham exception contains an 

indispensable objective component" and a subjective 

"anticompetitive intent or purpose alone cannot transform 

otherwise legitimate activity into a sham." PRE, 508 U.S. at 

58–59. The language in California Motor Transport upon which 

Titan relies for the test it advocates is the statement that "a 

pattern of baseless, repetitive claims may emerge which leads 

the factfinder to conclude that the administrative and judicial 

processes have been abused." California Motor Transport, 404 

U.S. at 513. This statement specifically identifies baseless 

litigation as forming the pattern of harassment, a requirement 

consistent with the test established in PRE. 

Considering the holdings in both PRE and California Motor 

Transport, we find no support for the imposition of a single, 

subjective test based on a finding of anti-competitive purpose 

simply because a series of actions rather than a single action 

is the focus of the alleged anti-competitive activity. We 

conclude that, when considering an allegation that the sham 

exception to the Noerr-Pennington doctrine applies, a court must 

consider first whether any or all of the complained of actions 

were objectively baseless, and those which are not may not be 

14
considered in determining whether the sham exception is 

applicable. Therefore, the trial court in this case did not err 

in applying the two-part test as described in PRE. 

3. Standing to claim the protection of the NoerrPennington doctrine. 

Titan argues that Riverton was not entitled to the 

protection of the Noerr-Pennington doctrine because such 

protection is available only to those persons or entities that 

are parties to the underlying litigation. Relying on In re 

Burlington Northern, Inc., 822 F.2d 518 (5th Cir. 1987), cert. 

denied sub nom. Union Pacific Railroad v. Energy Transportation 

Systems, Inc., 484 U.S. 1007 (1988), Titan asserts that a person 

without standing to bring a suit cannot "manufacture standing" 

by "orchestrating litigation" for the purpose of interfering 

with a competitor. Titan argues that Riverton's lack of 

standing in the underlying litigation denies Riverton the 

protection of the Noerr-Pennington doctrine for its actions in 

supporting, soliciting, and financing others in the prosecution 

of that litigation. 

 The trial court considered these same arguments in 

connection with its ruling on Riverton's demurrer and motion for 

partial summary judgment on Titan's original motion for 

judgment. The trial court rejected Titan's arguments, adopting 

the rationale of the federal district court in Baltimore Scrap 

15
Corp. v. The David J. Joseph Co., 81 F. Supp. 2d 602 (D. Md. 

2000). In that case, the district court held that the NoerrPennington doctrine applied even if a company secretly and for 

anti-competitive purposes, sponsored a lawsuit against a 

competitor, "so long as the lawsuit is neither a sham, meaning 

that it is not objectively baseless, nor fraudulent." Id. at 

603. The United States Court of Appeals for the Fourth Circuit 

subsequently affirmed the federal district court's holding that 

the defendants' participation in the underlying action was not 

determinative in the sham litigation analysis and that 

"[f]unding of litigation by a non-party can be petitioning to 

the same extent" as actually filing the lawsuit. Baltimore 

Scrap Corp. v. The David J. Joseph Co., 237 F.3d 394, 401 (4th 

Cir.), cert. denied, 533 U.S. 916 (2001). In reaching its 

holding, the Fourth Circuit observed that 

nonparties often provide aid to litigants, whether 

through financial backing, legal assistance, amicus 

briefs, or moral support. . . . The realities often 

are that litigation cannot be entirely financed out of 

the pocket of the party bringing suit. . . . To hold 

that only parties who have standing in their own right 

receive the protection of Noerr-Pennington immunity is 

to artificially restrict that doctrine by penalizing 

even the lawful support of objectively meritorious 

actions. 

Id. at 401. 

We consider this rationale the more persuasive and proper 

application of the Noerr-Pennington doctrine. Accordingly, we 

16
conclude that the trial court did not err in holding that 

Riverton's support for and financing of the litigation brought 

by others did not exclude Riverton from the protection afforded 

by the Noerr-Pennington doctrine. 

B. Demurrer 

 Next Titan asserts that the trial court should not have 

decided this matter on demurrer. Applying the principle that a 

pleading that sufficiently states a cause of action survives a 

demurrer, Titan argues that each of its pleadings sufficiently 

recited facts which if proved at trial would have invoked the 

sham exception to the Noerr-Pennington doctrine, and therefore 

the trial court should have denied Riverton's demurrers. We 

disagree with Titan. 

When the Noerr-Pennington doctrine and accompanying sham 

exception were invoked in Titan's pleadings and challenged by 

Riverton's demurrers, the trial court was required to consider 

the facts alleged in the pleadings as true and to draw all

reasonable inferences from those facts in favor of Titan. 

However, the trial court was not required to accept Titan's 

conclusions of law and, thus, the trial court was not bound by 

Titan's allegations in its pleadings that the litigation in 

question was baseless. Yuzefovsky v. St. John's Wood 

Apartments, 261 Va. 97, 102, 540 S.E.2d 134, 137 (2001). To 

rule on the demurrer, the trial court was required to apply the 

17
two-part PRE test and the initial focus of the court's inquiry 

was whether the underlying litigation was objectively baseless. 

To make this determination, the trial court took judicial 

notice of the records of the underlying actions, a procedure 

long recognized as appropriate by our jurisprudence. 

[W]here the plaintiff refers to another proceeding or 

judgment, and specifically bases his right of action, 

in whole or in part, on something which appears in the 

record of the prior case, the court, in passing on a 

demurrer to the complaint, will take judicial notice 

of the matters appearing in the former case. 

Fleming v. Anderson, 187 Va. 788, 794-95, 48 S.E.2d 269, 272 

(1948); see also Martone v. Martone, 257 Va. 199, 208, 509 

S.E.2d 302, 307 (1999). The issue before the trial court was 

the objective legal merit of each of the underlying proceedings. 

Following a review of each proceeding, the trial court, which 

conducted those underlying proceedings, concluded that Riverton 

had probable cause to pursue each of the proceedings and,

therefore, those cases were not objectively baseless. Having 

made this determination, the trial court did not have to reach 

the second part of the PRE test by considering Titan's 

allegations of sham activity when ruling on Riverton's demurrer. 

C. Discovery Limitation 

 Titan also complains that, in light of its allegations of 

fraud and misrepresentation, the trial court erred in limiting 

discovery and making a probable cause determination without 

18
further development of the evidence. Titan asserts that making 

the probable cause determination solely on the basis of the 

record of the underlying proceedings as a matter of law is 

proper only if "there is no dispute over the predicate facts of 

the underlying legal proceeding." PRE, 508 U.S. at 64-65. 

Here, Titan alleges disputed facts in the underlying litigation 

regarding "secret conspiracies," the use of straw persons, 

Riverton's "surreptitious orchestration and involvement" in the 

underlying litigation, and that named litigants were not members 

of a "citizens group." These matters involve Riverton's 

motivation for participating in the proceedings and the manner 

in which the litigation proceeded and do not address the 

predicate facts of the underlying legal proceedings. 

Clearly, the parties had divergent views on the legal 

implications of the facts in the underlying litigation, such as: 

whether Titan's proposed facility was a warehouse or 

distribution center entitled to a by-right permit; could the 

access road to the facility be used for industrial purposes; 

were the notice provisions of the Freedom of Information Act 

violated; and did EDA comply with existing law and internal 

rules in selling its property to Titan? These disputes, 

however, are not disputed facts in the underlying litigation 

that would prevent a court from determining whether the 

19
underlying litigation was "objectively baseless" as a matter of 

law. 

Finally, Titan urges that the trial court erred in making 

its probable cause rulings "in a vacuum" without further 

discovery on Titan's allegations that Riverton engaged in 

"concealments and misrepresentations, the full extent of which 

could not be known without ordinary discovery." We agree with 

Titan that the protection of the Noerr-Pennington doctrine 

should not be based on a judgment obtained by fraud and that 

intentional misrepresentations made to a court may deprive a 

proceeding of its legitimacy. But such alleged 

misrepresentations must be material to the underlying 

proceedings. To make this determination, the court examines the 

record of the underlying proceedings, the outcome of those 

cases, the nature of the alleged fraud or misrepresentation, and 

whether those allegations would have had an impact on the 

outcome of the underlying litigation. See Bath Petroleum 

Storage, Inc. v. Market Hub Partners, L.P., 129 F. Supp. 2d 578, 

593 (W.D. N.Y.), aff'd, 229 F.3d 1135 (2nd Cir. 2000), cert.

denied, 532 U.S. 1037 (2001). If this analysis shows that the 

alleged misrepresentations did not have a significant impact on 

the underlying litigation, further discovery is not necessary: 

To allow [ ] claims based solely on broad and 

indistinct allegations of misrepresentation and "sham 

litigation" to reach discovery, regardless of the role 

20
the claimed misrepresentations played, or could have 

played, in the prior proceeding would predicate the 

viability of [a] complaint on a petitioner's 

subjective intent, and not the objective merit of its 

petition, and thus directly contravene the Supreme 

Court's holding in PRE. 

Id. at 594 (citations and quotations omitted). 

In this case, Titan's allegations of fraud and 

misrepresentations, as we have already noted, concerned 

Riverton's motivation in pursuing or supporting the underlying 

actions. Allegations that Riverton solicited and financed 

litigation by others, even if its involvement was kept from the 

court, is not the type of fraud on the court that would bring 

into question the legitimacy of the proceeding, Baltimore Scrap, 

237 F.3d at 401-02, especially when the court has determined 

that the litigation was brought with probable cause and was not 

objectively baseless. 

The trial court carefully reviewed each of the underlying 

actions, including Riverton's suit based on an alleged violation 

of the Freedom of Information Act and the continuation of the 

appeal before this Court regarding the Potomac Edison site. In 

each instance the trial court concluded that none of the suits 

was objectively baseless. As stated by the trial court "[w]hile 

Riverton may have gotten perilously close to the line, it did 

not cross it." In light of this record, we conclude that the 

trial court did not err in considering whether there was 

21
probable cause to pursue the underlying litigation based on the 

records of those proceedings without allowing further discovery. 

Titan has challenged the use of the Noerr-Pennington

doctrine in this case and the manner and circumstances under 

which it was applied. Titan has not challenged the trial 

court's probable cause determinations based on the record of any 

of the underlying proceedings. Accordingly, the trial court's 

conclusion that Riverton had probable cause to pursue that 

litigation is not before us for review. 

D. Defamation 

In its September 13, 1999 bill of complaint seeking a writ 

of mandamus, a declaratory judgment, and an injunction against 

the sale of the EDA site to Titan, Riverton alleged that "the 

Commission of the European Communities and the Restrictive 

Practices Court in London have found that Titan and a Tarmac 

subsidiary, respectively, have violated European antitrust laws 

by engaging in collusive, anti-competitive activities in the 

cement industry, including market sharing and price fixing." 

Titan asserts that this statement was per se defamatory. The 

trial court sustained Riverton's demurrer to Titan's defamation 

count, concluding that the statement was entitled to an absolute 

privilege because it was made in the course of litigation. 

Titan assigns error to this holding. 

22
A statement made in the course of a judicial proceeding is 

absolutely privileged if it is material and relevant to the 

proceeding. Donohoe Constr. Co. v. Mount Vernon Associates, 235 

Va. 531, 537, 369 S.E.2d 857, 860 (1988). Such statements are 

privileged because of the safeguards in those proceedings, 

including rules of evidence and penalties for perjury. 

Lockheed, 259 Va. at 101, 524 S.E.2d at 424-25. Titan argues 

that the statement at issue here had no bearing on the issue in 

the litigation which was a suit "to compel [EDA] to comply with 

the Freedom of Information Act." The matter was settled by 

agreement on the pleadings with no evidence taken. Under these 

circumstances, Titan concludes that the allegedly defamatory 

statement was not entitled to absolute privilege. 

Titan's argument overlooks the second part of Riverton's 

mandamus proceeding in which Riverton sought a declaratory 

judgment and injunction precluding the sale of the land by EDA 

to Titan. In that count, Riverton alleged that, by statute, EDA 

was required to consider the public interest in determining 

whether it would sell the site to Titan. Whether the sale would 

be in the public interest if the site were to be used to 

facilitate unfair competition was an issue before EDA and the 

circuit court and, therefore, statements regarding Titan's past 

actions were relevant. Finally, settlement of the litigation 

before consideration of all the counts does not deprive 

23
statements relevant to the untested allegations of the 

protection of absolute privilege. Furthermore, the trial court 

judge in this case conducted all the underlying proceedings 

including the mandamus action. He was aware of all the 

arguments made and their relevance to the causes of actions 

before him. 

Based on this record, we cannot say that the trial court 

was in error as a matter of law in determining that the 

allegedly defamatory statement was relevant to the proceedings. 

For the reasons stated above, we hold that the trial court 

did not err by applying the Noerr-Pennington doctrine to the 

state tort claims at issue here; that the trial court properly 

applied the two-step analysis from PRE when determining that 

Riverton's actions did not fall within the sham exception to the 

Noerr-Pennington doctrine; that the trial court did not err by 

deciding that Riverton had standing to claim the NoerrPennington doctrine as a defense; that the trial court properly 

made the determination regarding whether Riverton had probable 

cause to bring the underlying proceedings based on the record of 

those proceedings without allowing or considering additional 

discovery or evidence; and that the trial court did not err in 

sustaining Riverton's demurrer to Titan's defamation count. 

Accordingly, we will affirm the judgment of the trial 

court. 

24
Affirmed.

25