Noerr-Pennington Doctrine Cannot Defeat Sham Litigation, DMCA Counterclaims

Mercer Publishing Inc., Smart Cookie Ink, LLC and Testingmom.com, LLC all make materials for elementary school children studying for standardized academic placement tests.  Mercer sued Smart Cookie and Testingmom.com in the Western District of Washington for copyright infringement, alleging that both Smart Cookie and Testingmom.com copied, published and distributed copyrighted study materials created by Mercer.

Mercer brought a motion to dismiss Smart Cookie’s and Testingmom.com’s amended counterclaims.  The district court denied Mercer’s motion, ruling that the Noerr-Pennington doctrine (discussed below) did not provide Mercer with immunity and that the defendants’ counterclaims raised factual issues that could not be resolved on a motion to dismiss.  Likewise, the district court denied Smart Cookie’s and Testingmom.com’s motion for summary judgment, ruling that genuine issues of material fact precluded summary judgment in the defendants’ favor.

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