N.H. SC overturns $6.7M verdict

Jessica M. Karmasek Nov. 11, 2010, 11:57am


CONCORD, N.H. (Legal Newsline) - The New Hampshire Supreme Court this week reversed the ruling of a lower court, saying it erred in awarding a $6.7 million verdict in favor of the operator of a personal wireless service facility.

The operator of the facility, or in this case the plaintiff, is Green Mountain Realty Corporation. The defendant is The Fifth Estate Tower, LLC. Fifth Estate -- like Green Mountain -- constructs, owns and operates personal wireless service facilities.

At the center of the case is a series of postcards, the companies call them, that Fifth Estate designed, printed and distributed. The cards or mailers, according to Court documents, included statements that Green Mountain claims were misleading and/or false.

According to the Court's 11-page opinion filed Wednesday, the cards were distributed to the general electorate in connection with a September 2005 special town meeting involving two warrant articles.

The warrant articles asked whether town voters would authorize the town's board of selectmen to enter into long-term leases with Green Mountain, which would enable it to construct a radio communications tower on town property known as Poor Farm Hill and install radio antennas at the site of the town's existing water tank.

The cards allegedly urged town voters to vote against the two warrant articles because the town did not need "to get better cellular service or emergency services" as it "already (had) existing structures to handle both."

The cards referred to the proposed communications tower as an "eyesore" and unnecessary.

In the months preceding the special town meeting, in addition to sending the postcards, Fifth Estate also ran a series of advertisements, newspaper pieces, radio announcements and mass mailings that included statements that the tower to be erected on Poor Farm Hill would destroy the town's picturesque skyline; for the water tank site alone, Green Mountain would take more than $1 million from town taxpayers; Green Mountain's personal wireless service facilities would cause residents to suffer from cancer, Alzheimer's disease and other serious illnesses; and that the leases would cost taxpayers between $200,000 and $600,000 over their respective terms.

In the end, the town electorate rejected both warrant articles.

In response, in December 2008, Green Mountain filed a writ against Fifth Estate alleging, among other causes of action, a claim that Fifth Estate violated the state's Consumer Protection Act because its "false and misleading statements" constituted "unfair and deceptive acts or practices."

Fifth Estate moved for summary judgment, arguing that the act does not apply to its conduct because it took place in a political context, rather than a commercial one, and because its statements were political speech protected by the First Amendment to the Federal Constitution and Part I, Article 22 of the state's Constitution.

The trial court denied the motion, and the claim proceeded to trial. Fifth Estate raised the same arguments in its motions for directed verdict and judgment notwithstanding verdict.

The trial court rejected the arguments and Green Mountain was awarded a $6.7 million jury verdict. The appeal before the state's high court followed.

Fifth Estate, in its appeal, argued that the superior court erred by denying its summary judgment motion and motions for directed verdict and judgment notwithstanding verdict.

Senior Associate Justice Linda S. Dalianis, who authored the opinion for the Court, wrote that for the purposes of the appeal, the Court assumed that Fifth Estate's conduct constituted an unfair or deceptive practice within the meaning of the consumer protection act.

"Nonetheless, we conclude that the (act) does not apply because Fifth Estate's conduct occurred in a political setting," the justice wrote.

In reaching its conclusion, the Court relied upon the Noerr-Pennington doctrine. Under the doctrine, "(c)oncerted efforts to restrain or monopolize trade by petitioning government officials are protected from antitrust liability."

The Court held that the doctrine applies to claims brought under the consumer protection act. The act, the justices said, is "analogous" to the Federal Trade Commission Act.

"The CPA, like the Federal Trade Commission Act, is tailored for the business arena, not the political arena," Dalianis wrote.

The Court also concluded that Fifth Estate's "mere attempts to influence" the passage of the warrant articles does not violate the act, even if, as Green Mountain alleges, Fifth Estate's sole motive was to eliminate Green Mountain as a competitor.

Also, the Court was not persuaded by Green Mountain's assertion that the special town meeting at issue didn't involve the passage or enforcement of laws.

"As Green Mountain acknowledges, the town of Wolfeboro has a town meeting form of government, and "(i)t is well understood that, within the limits of the power of legislation conferred upon it, a town meeting is a legislative body," Dalianis wrote for the Court.

At issue, the Court noted, is the passage of warrant articles, which, in a town meeting, are the equivalent of legislation.

The Court concluded, "To summarize, we hold that the Noerr-Pennington doctrine applies to claims brought under the (consumer protection act) and that Fifth Estate is entitled to immunity under that doctrine for its actions.

"Accordingly, we conclude that the trial court erred when, in denying Fifth Estate's summary judgment motion and motions for directed verdict and judgment notwithstanding verdict, it ruled that the (act) applied to Fifth Estate's conduct."

From Legal Newsline: Reach Jessica Karmasek by e-mail at jessica@legalnewsline.com.

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