advertising. Finally, NARD by affidavit denies that it ever ousted a pharmacist from membership for the reasons alleged in the complaint.
For these reasons, plaintiffs now solely rest their case against NARD upon four circumstances. Plaintiffs maintain that these instances demonstrate that NARD openly participated and conspired with APhA to injure the mail order prescription business. Plaintiffs further contend that none of the circumstances cited involved Noerr -protected activity; in other words, that the instances demonstrate a conspiracy with objectives falling outside the mantle of Noerr. The four circumstances, as shown by the record, are:
A. In 1960, NARD and APhA actively induced the American Medical Association to adopt a resolution opposing the dispensation of drugs by mail order houses.
B. In 1968, NARD and APhA, through an intensive publicity campaign, persuaded the Pharmaceutical Manufacturers Association ("PMA"), to retract a statement the latter had made in a critique of a Report of the United States Department of Health, Education and Welfare. The statement made by PMA had recommended that the extant legal barriers to prescription drug advertising be removed.
C. In 1972, counsel for NARD and counsel for APhA attended a meeting sponsored by several state pharmaceutical associations. At the meeting was discussed the associations' opposition to various suits which had been initiated by the Pathmark chain of stores challenging existing governmental restrictions on the advertising of prescription drug prices. NARD provided the participants with a list of case precedents, but declined actively to participate any further in connection with the litigations because it perceived the defendants' position to be weak. Indeed, it appears that the NARD and APhA representatives expressed a belief that advertising might not damage the interests of pharmacists as much as some of the other participants assumed.
D. In 1973, NARD joined with APhA to form a Committee on Pharmacy Economic Security ("COPES") to promote and protect the professional and economic interests of pharmacists. The only apparent connection this organization ever had with the issue of mail order pharmacy was when NARD proposed that the issue be considered at one of the organization's meetings. In fact, the topic was never discussed.
(A) and (B) are protected by the Noerr doctrine. Plaintiffs contend that Noerr does not immunize joint attempts to enlist other organizations with allied interests to rally in a common publicity effort. Plaintiffs misread the law. The Noerr case dealt with a publicity campaign involving ostensibly "independent persons and civil groups," Noerr, supra, 365 U.S. at 130, 134, 140-42, 81 S. Ct. 523, and the use of "newspaper articles, editorials, magazine articles" and the like, Id., 365 U.S. at 142, 81 S. Ct. 523. The evidence here leaves no doubt that (A) and (B) were at least indirect attempts to influence governmental behavior.
(C) most certainly does not fall within the category that encompasses "repetitive lawsuits carrying the hallmark of insubstantial claims and thus . . . within the "mere sham' exception announced in Noerr." Otter Tail Power Co. v. United States, supra, 410 U.S. at 380, 93 S. Ct. at 1031. Indeed, (C) substantially undercuts the force of plaintiffs' claims.
(D) is utterly insignificant.
Nothing else of substance remains in the papers. Accordingly, summary judgment is granted to NARD.
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