FILED: NEW YORK COUNTY CLERK 09/29/ :41 PM INDEX NO /2015 NYSCEF DOC. NO. 511 RECEIVED NYSCEF: 09/29/2017

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1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X In Re NEW YORK CITY ASBESTOS LITIGATION X This Document Relates To THOMAS GALLEN and MAURA GALLEN, Plaintiffs, - against - AMERICAN BILTRITE INC., et al. Defendants X NYCAL I.A.S. Part 50 (Moulton, P.) Index No DEFENDANT AMERICAN BILTRITE INC. S TRIAL BRIEF TO PRECLUDE EVIDENCE OF OR REFERENCE TO AMERICAN BILTRITE INC. S LOBBYING OR GOVERNMENT PETITIONING ACTIVITIES A. Any reference or evidence of American Biltrite Inc. s lobbying or political activities is inadmissible as protected speech under the First Amendment. 1. Plaintiff in this case should be prohibited from introducing any evidence or making argument or reference to American Biltrite Inc. s ( ABI ) advocacy efforts or governmentpetitioning activities. Under the Noerr-Pennington doctrine, these activities are privileged conduct protected under the First Amendment of the United States Constitution. The Noerr- Pennington doctrine protects from... liability those who petition the government in order to secure or amend their rights. PostX Corp. v. Secure Data in Motion, Inc., 2004 U.S. Dist. LEXIS 24260, at *14 (N.D. Cal. 2004). Because liability may not be based on such activities, (see Eastern R.R. President Conference v. Noerr Motors Freight, Inc., 365 U.S. 127, 138 (1960), 1 of 6

2 and United Mine Workers v. Pennington, 381 U.S. 657, 670 (1965)), evidence concerning such activities is completely irrelevant to the issues to be tried. 2. Numerous courts nationwide, including New York state courts and the Second Circuit, have applied the Noerr-Pennington doctrine to preclude civil liability for the exercise of First Amendment rights. See Concourse Nursing Home v. Engelstein, 181 Misc. 2d 85, 87 (Sup. Ct. 1999), aff'd, 278 A.D.2d 35 (2000) (dismissing four tort causes of action premised upon defendants alleged communication with the New York State Department of Health); See Primetime 24 Joint Venture v. Nat l Board Co., 219 F.3d 92, 100 (2d Cir. 2000) ( [c]ourts have extended Noerr-Pennington to encompass concerted efforts incident to litigation, such as prelitigation threat letters "; Brownsville Golden Age Nursing Home v. Wells, 839 F.2d 155, 160 (3d Cir. 1988) (dismissing civil conspiracy claim alleging that defendants tortiously reported a nursing home s suspected code violations); Stern v. U.S. Gypsum, Inc., 547 F.2d 1329, 1342 (7th Cir. 1977) (Noerr-Pennington precludes 1985(1) liability or reporting a government agent s suspected misconduct); Senart v. Mobay Chem. Corp., 597 F. Supp. 502, 506 (D. Minn. 1984) ( In short, plaintiffs assail defendants for taking a particular view in a scientific debate and for trying to retain a regulatory standard which defendants preferred. Not only do these actions not constitute torts, they are protected by the First Amendment. ); Sierra Club v. Butz, 349 F. Supp. 934, (N.D. Cal. 1972) (defendant s counterclaim dismissed because Noerr bars civil liability for filing a civil suit for injunctive and declaratory relief). 3. Courts have applied this doctrine to conspiracy claims by plaintiffs in products liability suits. See Cipollone v. Liggett Group. Inc., 668 F. Supp. 408 (D.N.J. 1987) (motion in limine to exclude Plaintiff s evidence of Defendant s (a cigarette manufacturer) lobbying and governmental influence activities in a product liability suit); Senart, 597 F. Supp. at of 6

3 (dismissing alleged conspiracy to obfuscate scientific evidence considered by OSHA in a defective foam products liability suit). 4. Lobbying efforts on the part of ABI fall squarely within protected speech under the First Amendment and the Noerr-Pennington Doctrine. Thus, Plaintiffs should be precluded from making reference to lobbying efforts or other communications by ABI with any governmental entity. B. None of the exceptions to the Noerr-Pennington Doctrine apply to ABI. 5. There are two well recognized exceptions to the Noerr-Pennington doctrine, neither of which applies here. First, efforts to influence the government are not protected where they are found to be a sham that is objectively baseless. City of Columbia v. Omni Outdoor Advertising, 499 U.S. 365, 380 (1991) (quotations and citations omitted). Here, there is no evidence or any specific facts produced in discovery detailing a conspiracy between Defendant and another. Further, there is no evidence that Defendant was involved in any alleged sham a situation involv[ing] a defendant whose activities are not genuinely aimed at procuring favorable governmental action at all. City of Columbia v. Omni Outdoor Advertising, 499 U.S. 365, 380 (1991). The Supreme Court has explicitly observed that a successful effort to influence governmental action certainly cannot be characterized as a sham. Prof l Real Estate Inv rs, Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49, 58 (1993) (internal citations and quotations omitted). 6. The second exception is the corruption exception. Overtly corrupt conduct, such as threatening or bribing a public official, has also been ruled to be outside the protection of the doctrine. Friends of Rockland Shelter Animals, Inc. v. Mullen, 313 F. Supp. 2d 339, 343 (S.D.N.Y. 2004). The corruption exception... applies only where a party has stepped beyond 3 3 of 6

4 the bounds of zealous advocacy and engages in conduct alleged to be criminal, not just deceptive or unethical. EDF Renewable Dev., Inc. v. Tritec Real Estate Co., Inc., 147 F. Supp. 3d 63, 69 (E.D.N.Y. 2015), appeal dismissed (Apr. 22, 2016) (internal quotations omitted); see also re Alfred Weissman Real Estate, Inc. v. Big V Supermarkets, Inc., 268 A.D.2d 101, 110, 707 N.Y.S.2d 647, 654 (2000) (same); Cipollone v. Liggett Grp., Inc., 668 F. Supp. 408, 410 (D.N.J. 1987). In Feld Entertainment, the court noted that the defendants were entitled to Noerr- Pennington immunity when their statements were part of publicity campaigns to influence governmental action rather than made during governmental proceedings, even though the defendants were alleged to have made false or misleading statements, were sometimes compensated for such statements, participated in press conferences, and posted letters on organizational websites. See Feld Entm't Inc. v. Am. Soc'y for the Prevention of Cruelty to Animals, 873 F. Supp. 2d 288, 307 (D.D.C. 2012). 7. Here, there is no evidence produced in discovery or alleged in Plaintiffs Complaint that ABI bribed or threatened a public official or partook in any illegal conduct. Further, there is no evidence of any deceptive or unethical conduct or false or misleading statements, which, without more, are still protected under the Noerr-Pennington Doctrine. Id. Accordingly, neither of the two well-documented exceptions to the Noerr-Pennington Doctrine is applicable in this case, and thus any reference to or evidence of ABI s lobbying or political activities should be excluded. C. Admission of evidence of alleged lobbying or government petitions performed by Defendant runs afoul to the Separation of Powers Doctrine. 8. Allowing a jury to speculate as to what effect ABI s lobbying efforts had on legislative or regulatory action would constitute a substantial judicial intrusion into the working of other branches of government in violation of the separation of powers doctrine. Village of Arlington 4 4 of 6

5 Heights v. Metropolitan Hous, Dev. Corp., 429 U.S. 252, 268 n. 18 (1977); Department of Fisheries v. Chelan County PUD, 588 P.2d 1146, 1148 (Wn. 1979) ( [I]t is not a function of the court or the jury to conjecture as to what the legislature could have done or what it might do in the future. ). 9. Plaintiffs should be prohibited from referencing documents, meeting minutes, and statements by ABI and trade organizations to show their impact on what the government should and should not do in reference to the regulation of asbestos. Such evidence will cause the jury to speculate as to whether ABI s statements to the government affected the adoption (or lack thereof) of various legislative or regulatory proposals. D. Evidence of ABI s alleged lobbying, petitioning, or other similar actions should also be excluded as it is prejudicial, misleading, and a waste of time. 10. A court may exclude relevant evidence if its probative value is substantially outweighed by the danger of undue prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence. See People v. Davis, 371 N.E.2d 456 (N.Y. 1977); Blanchard v. Lifegear, Inc., 45 A.D.3d 1258, 845 N.Y.S.2d 622, 625 (4th Dep't 2007). 11. Evidence of ABI s lobbying activities and group membership would serve only to confuse and mislead the jury, and create undue prejudice and bias against ABI. Such evidence would mislead jurors into discussions and collateral issues of what effect ABI s statements or petitions, if any, had on regulatory activities. Some courts have held that that such evidence is presumptively prejudicial. See e.g. United States Football League v. National Football League, 634 F.Supp. 1155, 1181 (S.D.N.Y.1986). Even if there were some marginal value to referencing such activities, which there is not, it is outweighed by the prejudicial nature and time it would 5 5 of 6

6 consume. Such evidence would essentially create a mini-trial that is entirely irrelevant to the alleged injury. Therefore, reference to or evidence of ABI s lobbying or political activities should be excluded. III. CONCLUSION 12. Based on the foregoing, ABI hereby moves for an Order to preclude Plaintiffs from making any comments or attempting to present any evidence at trial relating to Plaintiffs allegations regarding an alleged conspiracy among the defendants. Specifically, Plaintiffs should be precluded from arguing or offering evidence concerning ABI or the defendants communications with government agencies about the regulation of asbestos. Dated September 29, 2017 By Jason I. Irvin, Esq. Hawkins Parnell Thackston & Young LLP 4514 Cole Avenue, Suite 500 Dallas, Texas (214) of 6