For a lengthy discussion of the fascinating world of the Noerr-Pennington doctrine as applied to prelitigation communications, take a gander at Judge Berzon's opinion in this case. And, yes, that sentence is dripping with sarcasm, but I also mean it. If you're a big academic federal courts scholar -- or simply care about not getting sued if and when you write pre-litigation demand letters -- it's actually a pretty interesting (and, in my view, accurate) exegesis on the subject matter.
District judge Panner's concurrence -- which is only a single paragraph, so definitely read it -- looks pretty darn reasonable as well. With this caveat: Judge Berzon is totally right when, in footnote 3, she basically says: Nope. Read that footnote for a good explanation of what "dicta" really is, and why Judge Panner isn't correct that the opinion is basically advisory. Judge Panner's approach makes facial sense, but it's Judge Berzon who's actually right.
P.S. - A shout out to my former boss, Dale Oliver, and a former colleague, Mike Williams, for their successful representation of DIRECTV in this appeal. Good job, guys.
