Full opinion text
OPINION VANASKIE, Chief Judge. I. INTRODUCTION On October 1, 1996, plaintiff Santana Products, Inc. (Santana) instituted this action against defendants Bobrick Washroom Equipment and Bobrick Corporation (collectively “Bobrick”), The Hornyak Group, Inc. (“Hornyak”), Vogel Sales Company (“Vogel”), Sylvester & Associates, Ltd., and Fred Sylvester. Santana, which manufactures and sells restroom and toilet partitions made of high density polyethylene (“HDPE”), alleges that Bobrick and other toilet compartment manufacturers conspired to enforce a product standard that had the effect of excluding Santana’s HDPE compartments from the relevant market. Specifically, Santana claims that Bobrick along with members of a now-defunct trade association, the Toilet Partition Manufacturers Council (“TPMC”), collectively embarked on a campaign to convince prospective customers that (1) toilet partitions had to meet fire code flame spread and smoke development requirements for “wall finish”; and (2) HDPE did not meet such requirements. Santana has asserted claims under §§ 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1-2; the false advertising provision of the Lanham Act, 15 U.S.C. § 1125(a); and the common law tort of intentional interference with prospective contractual relationships. Following protracted and, at times, acrimonious discovery, the parties filed cross-motions for summary judgment. Santana has filed a partial summary judgment motion on its Sherman Act section 1 claim, (Dkt. Entry 43), and a summary judgment motion as. to the defendants’ liability under section 43(a) of the Lanham Act, (Dkt. Entry 271), while the motions of Bobrick, Hornyak, and Vogel attack all of Santana’s claims. (Dkt. Entries 287, 291, 294.) The motions present several important and difficult issues for which there is no controlling precedent in this Circuit. For example, the defendants contend that their marketing activities directed toward public entities, such as school districts, are shielded from liability under the Noerr/Penning-ton doctrine. Defendants present this threshold defense not only with respect to the Sherman Act and common law claims, causes of action to which the Noerr/Pen-nington doctrine is plainly applicable, but also to the Lanham Act claim, an assertion for which there is little case law guidance. Because it is clear that the overwhelming bulk of the toilet partition market is directed at public construction, resolution of this issue in defendants’ favor would have a significant impact on the scope of Santana’s claims; effectively eliminate Hornyak and Vogel as defendants inasmuch as their marketing activities were limited to public institutions; and severely limit Bobrick’s liability. Pointing out that Santana is complaining of conduct that occurred seven years before the filing of this action, and that Santana had settled an earlier lawsuit against the members of the TPMC, defendants have also presented a substantial challenge to the timeliness of Santana’s claims, especially its Lanham Act cause of action, to which the doctrine of laches applies and for which there is no controlling precedent in this jurisdiction. Having carefully considered the parties voluminous submissions, the comprehensive evidentiary record, and the applicable law, I have concluded that the Noerr/Pen-nington doctrine is indeed applicable to all of Santana’s claims, thereby limiting any recovery to the non-public sector. I have further determined that none of Santana’s claims is time-barred, but recovery is limited to violations occurring within the applicable limitations period. In this regard, a four-year limitations period governs the Sherman Act claims, Pennsylvania’s six-year limitations period for claims based upon statutory violations controls the Lan-ham Act claim, and a one year limitations period defines the compensable parameters of the tortious interference claim. As to the substantive merits of Santana’s claims, I have concluded that Hornyak and Vogel, as captive sales representatives of Bobrick, cannot be held hable under section 1 of the Sherman Act. I have further found that the assailed marketing campaign did not constitute an unlawful restraint on trade and that, in any event, Santana has shown no more than a de minimis effect on competition, thus warranting summary judgment in favor of the defendants on the Sherman Act § 1 claim. Defendants are also entitled to summary judgment on the § 2 claim because, for essentially the reasons articulated by Judge Mishler in the parallel case of Santana Products, Inc. v. Sylvester & Associates, Ltd., 121 F.Supp.2d 729 (E.D.N.Y.1999), the “shared monopoly” claim presented by Santana is not cognizable under section 2 of the Sherman Act. Summary judgment in favor of the defendants on the tortious interference claim is warranted because Santana has failed to present evidence of the loss of a prospective contract with a non-public customer within the one-year limitations period. Finally, there are issues of material fact that preclude summary adjudication of the Lanham Act claim. As a result of these rulings, Santana’s claims have been severely limited. In recognition of the fact that appellate court consideration of difficult and close questions prior to any trial may serve the interests of the parties and of judicial economy, that the need for appellate review will not be mooted by further proceedings in this Court, and that there is “no just cause for delay,” see Berckeley Inv. Group, Ltd. v. Colkitt, 259 F.3d 135, 140-42 (3d Cir.2001), I will direct entry of final judgment in favor of Bobrick as to the Sherman Act claims (Counts I and II of the complaint), and the tortious interference claim (Count IV), and in favor of Hornyak and Vogel as to all claims, in accordance with Fed.R.Civ.P. 54(b). Furthermore, because of the impact of the Noerr/Pennington ruling on the scope of the Lanham Act claim, and because that decision involves a “controlling question of law as to which there is substantial ground for difference of opinion and ... an immediate appeal may materially advance the ultimate termination of the litigation,” 28 U.S.C. § 1292(b), I will certify the accompanying order for immediate appeal pursuant to 28 U.S.C. § 1292(b). II. BACKGROUND A. The Toilet Compartment Industry The toilet compartment industry consists of a number of national distributors of toilet partitions and a smaller number of regional distributors. These distributors offer several different materials for use as partitions, including metal, stainless steel, plastic laminate, solid phenolic, and HDPE. (Pl.Rev.Stat. of Material Facts/Sherman Act, Dkt. Entry 382, ¶ 5.) Other materials can be used for toilet partitions, but generally have drawbacks that prevent widespread use (for example, marble is now rarely employed because of its expense and weight). (Ex. 295, Supp. Appx. to Mem. in Support of Bobrick’s S.J. Mot., Dkt. Entry 411, Final Report: The Prospects for HDPE in the Market for Lavatory Partitions and Panels, April 1990, at 5.) The specification process for public building contracts is central to competition within the toilet partition industry because, by definition, toilet partitions are installed only in public restroom facilities. Bidding on a public building contract is a two-part process. It is the first part — specification — that is the focus of this litigation. Prior to competitive bidding on price, the architect or “specifier” on a budding project writes specifications for the materials to be used. Onc'e the specifications are finalized, only those companies whose products satisfy the specifications may ultimately bid on the project. See generally Stearns Airport Equip. Co. v. FMC Corp., 170 F.3d 518, 525 (5th Cir.1999). Thus, the toilet partition suppliers actively lobby architects and specifiers for public building projects to specify their product or not to specify a competitor’s product. The companies compete on such varied grounds as durability, resistance to vandalism, ease of installation, and aesthetics. After specification, competitors whose products satisfy the specifications compete only on price. This litigation deals with the business practices of two participants in the toilet partition industry. Santana, based out of Scranton, Pennsylvania, was formed in the late 1970s and was the first manufacturer to offer solid plastic restroom toilet partitions as an alternative to conventional toilet partitions. (Complaint, ¶ 21.) In the early 1980s, Santana introduced HDPE partitions. (Pl.Rev.Stat. of Material Facts/Lanham Act, Dkt. Entry 387, ¶ 1.) These partitions were advertised as vandal resistant because of the ease of cleaning and ease of repairing scratches, both due to the partition’s solid plastic construction. In its Sweet’s Catalog advertisements, Santana listed as advantages of HDPE its cost, durability, ease of maintenance, particularly in highly vandalized areas, and lack of absorbency. (Ex. 60, Appx. to Mem. in Support of Bobrick’s S.J. Motion, Dkt. Entry 298, 1986 Sweet’s Catalog, at S 66786.) Santana also promoted its partitions’ fire-resistant characteristics. As of mid-1989, several companies offered HDPE toilet partitions: Knickerbocker, Sanymetal, Capital Partitions, General Partitions, and Santana. (Pl.Rev.Stat. of Material Facts/Sherman Act, Dkt. Entry 382, ¶ 3.) Bobrick Washroom Equipment, Inc. and The Bobrick Corporation are California corporations. Bobrick manufactures toilet partitions made of both solid phenolic and laminated plastic over a particle board core (plastic laminate). Phenolic is composed of craft paper impregnated with resins and compressed under high pressure and temperature to form a solid core. The core material is covered on each side with a laminated plastic material to provide a decorative surface. (Ex. 4, Appx. to Mem. in Support of Bobrick’s S.J. Mot., Dkt. Entry 298, Thompson Dep. Tr., at 95-97; Ex. 5, id., Mahony Dep. Tr., at 30-31; Ex. 7, id., Henry Dep. Tr. at 56-57.) Bobrick’s marketing strategy — in addition to the “fire scare” campaign at the heart of this dispute — focused on the durability of its partitions. For example, Bobrick claimed in one ad: With Bobrick’s solid phenolic construction and heavy-duty stainless steel hardware, it takes more than 2,000 pounds of force to knock a door off a stile. Plus, DuraLine compartments are available to meet Class A and B fire safety standards. Smooth graffiti-resistant surfaces wipe clean. School-engineered hardware can be concealed from the outside or through-bolted, and you can select from a variety of colors. (Vol. II, Ex. A. 11, Appx. in Support of PI. 5.J. Mot./Lanham Act, Dkt. Entry 280, Klein Dep. Ex. 12, at B 148756.) Toilet partitions constitute approximately ten percent of Bobrick’s total sales, with the remaining ninety percent consisting of various washroom accessories. (Bobrick’s Rev. Stat. of Material Facts, Dkt. Entry 407, ¶ 3.) Bobrick is considered one of the largest washroom accessories manufacturers in the United States. (Id.) Two of Bobrick’s independent sales representatives are also defendants in this action. Hornyak is a Delaware corporation that serves as a Bobrick architectural representative in Pennsylvania. Similarly, Vogel is a Pennsylvania corporation based out of Pittsburgh that acts as a sales representative for Bobrick, inter alia, in the western part of the state. (Complaint, ¶¶ 4-5.) B. The ASTM E-84 Test and Santana’s Fire Rated Compartment In the construction industry, materials are often tested for flammability before use in construction. One common flammability test is the American Standard Test Methods (ASTM) E-84 Test. The ASTM E-84 test, also called the “Steiner Tunnel Test,” creates comparative values for the speed at which a flame spreads across the surface of a material and the rate at which smoke develops when the material burns. Specifically, the test develops “flame spread” and “smoke developed” indices by comparing the rate of flame spread and smoke developed of the test material with that of select grade red oak and inorganic reinforced cement board surfaces under the same fire exposure conditions. (Vol. IV, Ex. 3, Appx. in Support of PI. S.J. Mot./Lanham Act, Dkt. Entry 280, ASTM E-84-95b, ¶ 4.1) The ASTM E-84 test does contain two caveats: This standard should be used to measure and describe the response of materials, products, or assemblies to heat and flame under controlled conditions and should not be used to describe or appraise the fire-hazard or fire-risk of materials, products or assemblies under actual fire conditions. However, results of the test may be used as elements of a .fire-hazard assessment or a fire-risk assessment which takes into account all of the factors which are pertinent to an assessment of the fire hazard or fire risk of a particular end use. This standard does not purport to address all of the safety concerns, if any, associated with its use. It is the responsibility of the user of this standard to establish appropriate safety and health practices and determine the applicability of regulatory limitations prior to use. (Id., ¶¶ 1.7,1.8.) Some building codes and the National Fire Protection Association’s (“NFPA”) Life Safety Code 101 use the indices generated by the ASTM E-84 test to determine a material’s fire rating. The following rating system is the subject of this dispute: a Class A fire rating is the highest fire rating, requiring a flame spread index of 0-25; Class B is the next highest rating and requires a flame spread index between 26 and 75; finally, Class C fire rating requires a flame spread rating between 76 and 200. All three classes require a “smoke developed” index of less than 450. Any product that falls below the Class C fire rating is considered unrated. The NFPA Life Safety Code 101 requires different fire ratings for materials depending on the characterization of their use in the building project. For example, the NFPA requires materials considered part of the “interior finish” or “wall finish” to possess a Class B fire rating. If, however, the material is considered part of a “furnishing” or “fixture,” no fire rating is required. Central to this dispute is the categorization of toilet partitions as either an “interior finish,” requiring a Class B rating, or as a “fixture,” requiring no fire rating. In the early 1980s, Santana began to develop a fire rated toilet partition, using the ASTM E-84 test to measure the fire rating of its test panels. (Bobrick’s Rev. Stat. of Material Facts, Dkt. Entry 407, ¶¶ 8-10.) This effort led to the 8000 Series toilet partition (also called the “FR” partition by Santana), which Santana advertised as meeting a Class A rating. (Id., ¶ 12.) One Santana brochure stated that only the FR partition met or exceeded “mandatory building code requirements for flame spread, smoke generation, and toxicity. These requirements were established and are currently enforced by the NFPA, BOCA, and other federal, state, and local municipality safety agencies nationwide.” (Ex. 24, Appx. to Mem. in Support of Bobrick’s S.J. Mot., Dkt. Entry 298.) The reverse side of the brochure contained proposed specifications, which specified a fire rated toilet partition and referenced the ASTM E-84 test. (Id. at B 403-04.) A description of the FR partition and its fire rating was included in at least one of Santana’s Sweet’s Catalog advertisements as well. (Ex. 60, Appx. to Mem. in Support of Bobrick’s S.J. Mot., Dkt. Entry 298, 1986 Sweet’s Catalog, at S 66786.) Bobrick and Santana also dispute the reasons for Santana’s gradual withdrawal of its FR product. Bobrick contends that Santana experienced quality problems with the FR product. It was difficult to produce and lost most of the benefits of HDPE. Specifically, the FR material was brittle, heavy, cuts and scratches were difficult to fix, the color choices were limited, and it was very expensive. (Bobrick’s Rev. Stat. of Material Facts, Dkt. Entry 407, ¶¶ 18-19.) Moreover, Santana experienced difficulty in making a consistently Class A product. The FR partition varied in its fire rating. (PI. Response to Bo-brick’s Rev. Stat. of Material Facts, Dkt. Entry 893, ¶ 20.) While not disputing that its FR partition suffered from these various defects, Santana argues that this was not the reason for its decision to stop promoting the fire rated partition. Rather, Santana asserts that it stopped promoting the sale of fire rated compartments “once it realized that the market was being skewed in that direction by the competitors,” (Rev. Mem. in Opp. to Bobrick’s S.J. Mot., Dkt. Entry 391, at 67), and after realizing that a Class A rating was not required by building codes. Competitors, according to Santana, were able to sell more competitively against the FR partition precisely because of the negative characteristics listed above, particularly price. No matter which interpretation of Santana’s actions is adopted, however, it is undisputed that by the 1990s, Santana was phasing out its Class A product in favor of its standard, non-rated product, Poly-Mar HD. C. The 1994 TPMC Litigation In late 1989, several alleged non-party co-conspirators formed the Toilet Partitions Manufacturers Council (“TPMC”). According to Santana, Formica, one of the largest plastic laminate suppliers in the United States, and its customers in the toilet compartment industry had become concerned with Santana’s sales success in the marketplace. To combat this success, Formica and most of its plastic laminate customers had a series of group meetings beginning in October 1989, and continuing until the summer of 1991. At these meetings, the companies agreed that sales of HDPE compartments were a threat and that they would assert to specifiers that HDPE compartments, in particular Santana’s compartments, exceeded fire code standards for wall finish. The TPMC urged Formica to test its thick stock (solid phenolic) product as to its compliance with the ASTM E-84 test for “wall finish” and add the results to Formica’s Technical Data Sheet. (Pl.Rev.Stat. of Material Facts/Sherman Act, Dkt. Entry 382, ¶ 12.) Additionally, Formica and Met-par prepared a videotape that (according to Santana) falsely depicted the flammability of Santana’s HDPE partitions. The videotape was produced for use by the sales representatives of the TPMC members. Santana claims that the TPMC bylaws excluded HDPE toilet compartment manufacturers from membership. (Id., ¶¶ 27-30.) Bobrick, on the other hand, argues that the by-laws did not exclude manufacturers of HDPE from membership and that Santana was itself invited to join. (Bobrick’s Rev. Stat. of Material Facts, Dkt. Entry 407, ¶ 78-80.) Regardless, the three members of the TPMC that marketed HDPE partitions prior to 1990 — Knickerbocker, General Partitions, and Sanyme-tal — ceased to do so by the early 1990s (Pl.Rev.Stat. of Material Facts/Sherman Act, Dkt. Entry 382, ¶¶ 19, 36A.) Bobrick was aware of the formation of the TPMC, but declined to join it. It did, however, interact with Formica and Met-par on the question of HDPE’s fire characteristics. In July of 1989, Bobrick received a copy of a Metpar Fact Sheet comparing HDPE and phenolic and stating that HDPE had a smoke developed rating of 625, exceeding the limit of 450. (Id., ¶ 6A.) Later, Metpar and Bobrick shared data regarding Bobrick’s testing of Santana’s Poly-Mar HD toilet compartments. (Id., ¶ 13-15A.) Alan Gettelman and Bob Gillis of Bobrick were taken on a tour of a Formica plant and shown the Formica videotape. (Id., ¶22A.) Bobrick received a copy of the Formica videotape in early 1990 and, with Formica’s permission, sent copies to various architectural representatives. (Id., ¶¶ 23-24; 34; 36.) The only condition put on Bobrick’s use of the tape was that Bobrick was not to use it at trade shows. (Id., ¶ 36.) While Bobrick did not join the TPMC, it promised the Chairman of the TPMC that it “would be happy to help support the Council in any way we could.” (Id., ¶ 32.) On November 30, 1994, Santana filed a complaint in this Court against Formica, Metpar, ten other toilet partition manufacturers and the TPMC under the caption Santana Products, Inc. v. Toilet Partition Manufacturers Council, Civ. A. No. 3:CV-94-1962. As in this case, Santana’s claims in the TPMC action included alleged violations of sections 1 and 2 of the Sherman Act, section 43(a) of the Lanham Act, as well as tortious interference with prospective contractual relations. The TPMC action focused on an alleged conspiracy “to use scare tactics to discourage specification and acceptance of Santana’s HDPE partitions in lieu of or as a replacement material for conventional [toilet partition] materials by falsely alleging that Santana’s partitions posed a dangerous fire hazard.” (Ex. 225, Appx. to Mem. in Support of Bobrick’s S.J. Mot., Dkt. Entry 298, TPMC Complaint, ¶ 21.) On January 27, 1995, the TPMC, Formica and the eleven toilet partition manufacturers settled the 1994 TPMC litigation with Santana in a confidential agreement. (Ex. 229, Appx. to Mem. in Support of Bobrick’s S.J. Mot., Dkt. Entry 298, Settlement Agreement and Releases.) The 1994 TPMC lawsuit was then dismissed. D. Bobrick’s “Fire Scare” Marketing Campaign Santana alleges that both before and after the 1994 TPMC lawsuit, Bobrick engaged in an unlawful marketing campaign designed to persuade architects and specifiers that Santana’s HDPE compartments did not meet building code requirements and were a fire hazard. In addition to acquiring the Formica videotape in 1990, (Bobrick's Rev. Stat. of Material Facts, Dkt. Entry 407, ¶ 81), and distributing the Formica videotape to its sales representatives, Bobrick also distributed to its sales representatives a “Technical Bulletin” (TB-73) that provided a comparison of the results of an ASTM E-84 test performed on Bobrick’s 1080 DuraLine Series partitions and on HDPE partitions. (Id., ¶ 57.) The TB-73 bulletin was included in Bo-brick’s Architectural Manual from 1990 to at least 1994 and allegedly beyond. (Id., ¶ 59; PI. Response to Bobrick’s Rev. Stat. of Material Facts, Dkt. Entry 393, ¶ 59.) Bobrick also produced its own videotape in 1992-1993, entitled “You Be The Judge,” that included a side-by-side comparison of fire tests performed on solid phenolic and HDPE bathroom stalls. (Bobrick’s Rev. Stat. of Material Facts, Dkt. Entry 407, ¶ 108; Pl.Rev.Stat. of Material Facts/Sherman Act, Dkt. Entry 382, ¶ 81.) In addition to these comparisons, some Bobrick representatives also conducted live demonstrations of burning HDPE for architects and specifiers. Bobrick also addressed fire ratings in its national advertisements. Bobrick placed advertisements in the American School & University magazine (“AS & U”) in the early 1990s that described HDPE as a “fire hazard” that “far exceeds the maximum allowable smoke contribution standard of the National Fire Protection Association Life Safety Code ... according to a recent ASTM E-84 test .... ” (Bobrick’s Rev. Stat. of Material Facts, Dkt. Entry 407, ¶ 131.) Similar comparative statements were included in Bobrick’s Sweet’s Catalog advertisements. Bobrick also created slide presentations and sales scripts for its representatives that sought to portray HDPE as a fire hazard in comparison to its solid phenolic core compartments and its Thrislington series plastic laminate compartments. E. Procedural History On October 1, 1996, Santana filed its Complaint in this matter, naming as defendants Bobrick, Hornyak, Vogel, Sylvester & Associates, Ltd., and Fred Sylvester. (Dkt. Entry 1.) On June 1, 1998, Bobrick filed a Third-Party Complaint against Formica, asserting counts for (1) contribution, (2) indemnification, (3) fraud, and (4) negligent misrepresentation. (Dkt. Entry 174.) Bobrick’s Third-Party Complaint was dismissed by Memorandum and Order of August 30, 1999. See Santana Prods., Inc. v. Bobrick Washroom Equip., Inc., 69 F.Supp.2d 678, 690-91 (M.D.Pa.1999)(holding that there is no right to contribution or indemnification under the Sherman Act or the Lanham Act, that the release between Formica and Santana barred Bobrick’s contribution claim against Formica, that because Santana’s underlying action depends upon Bobrick’s knowing and intentional acts, a third-party claim for indemnification was unavailable, and that claims for fraud and negligent misrepresentation are not derivative claims for secondary liability, but rather independent tort claims which may not be maintained independently through a third-party complaint under Rule 14(a)). Sylvester & Associates and Fred Sylvester were earlier dismissed from the case for lack of personal jurisdiction by Memorandum and Order dated July 24, 1998. Santana Prods., Inc. v. Bobrick Washroom Equip., Inc., 14 F.Supp.2d 710 (M.D.Pa.1998). Between March 3, 1997 and September 12, 2000, the parties engaged in massive discovery. During the course of discovery, the parties inspected over a million pages of responsive documents and exchanged nearly 500,000 pages of these documents and more than two dozen videotapes. These responsive documents were the result of subpoenas for documents issued to over 270 third party architects, specifiers, public schools, municipalities, and testing laboratories nationwide, as well as every sales representative of both Bobrick and Santana. Subpoenas to defendants of the 1994 TPMC litigation and other competitors produced more than 50,000 additional pages of responsive documents. Several extensive computer databases were produced on seven compact discs and approximately two dozen computer diskettes. The parties deposed 181 witnesses, whose testimony filled more than 25,000 pages of transcripts. These include depositions of 156 fact witnesses in 22 states, 8 expert witnesses, and 17 expert-related fact witnesses. Moreover, a number of interrogatories were served during the course of this litigation. Such considerable discovery required the appointment of a Special Master, George A. Reihner, in late 1997 for the purpose of overseeing discovery and resolving discovery disputes. Following the conclusion of discovery, each party presented summary judgment motions. In support of its arguments, Santana proffered reports and testimony of its expert witnesses. Defendants moved in limine to have the court conduct Daubert hearings to determine the admissibility of Santana’s expert witness opinions. In response, Santana elected to withdraw its expert witness opinions. The parties then submitted revised memoranda of law that deleted references to the withdrawn opinions of Santana’s experts. Oral argument on the motions was held on April 30, 2002. III. DISCUSSION A. Summary Judgment Standard Summary judgment should be granted when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). A fact is “material” if proof of its existence or non-existence might affect the outcome of the suit under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). “Facts that could alter the outcome are material facts.” Charlton v. Paramus Bd. of Educ., 25 F.3d 194, 197 (3d Cir.), cert. denied, 513 U.S. 1022, 115 S.Ct. 590, 130 L.Ed.2d 503 (1994). “Summary judgment will not lie if the dispute about a material fact is ‘genuine,’ that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505. Initially, the moving party must show the absence of a genuine issue concerning any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). All doubts as to the existence of a genuine issue of material fact must be resolved against the moving party, and the entire record must be examined in the light most favorable to the nonmoving party. White v. Westinghouse Elec. Co., 862 F.2d 56, 59 (3d Cir.1988); Continental Ins. Co. v. Bodie, 682 F.2d 436, 438 (3d Cir.1982). Once the moving party has satisfied its burden, the nonmov-ing party “must present affirmative evidence to defeat a properly supported motion for summary judgment.” Anderson, 477 U.S. at 256-57, 106 S.Ct. 2505. Mere conclusory allegations or denials taken from the pleadings are insufficient to withstand a motion for summary judgment once the moving party has presented evi-dentiary materials. Schoch v. First Fidelity Bancorporation, 912 F.2d 654, 657 (3d Cir.1990). Rule 56.requires the entry of summary judgment, after adequate time for discovery, where a party “fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322, 106 S.Ct. 2548. B. The Noerr/Pennington Defense “Rooted in the First Amendment and fears about the threat of liability chilling political speech, the [Noerr/Pennington] doctrine was first recognized in two Supreme Court cases holding federal antitrust laws inapplicable to private parties who attempted to influence governmental action — even where the petitioning had anticompetitive effects.” A.D. Bedell Wholesale Co. v. Philip Morris, Inc., 263 F.3d 239, 250 (3d Cir.2001). The first Supreme Court decision was Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961), which held that the concerted efforts of railroads to influence the passage of legislation adverse to the trucking industry were immune from liability under the federal antitrust laws. The second decision came in United Mine Workers v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965), which ruled that parties petitioning a government agency to curtail coal purchases could not be held to account to an injured coal producer in an antitrust case. The Noerr/Pennington doctrine has been extended to commercial tort claims, e.g. Cheminor Drugs, Ltd. v. Ethyl Corp., 168 F.3d 119, 128 (3d Cir.1999), as well as federal statutory claims other than the Sherman Act. E.g., Int’l Bhd. of Teamsters, Local 734 Health & Welfare Trust Fund v. Philip Morris, Inc., 196 F.3d 818, 826 (7th Cir.1999)(Noerr/Pennington applied to claim under the Racketeer Influenced & Corrupt Organizations Act, 18 U.S.C. § 1962). Bobrick, Hornyak, and Vogel have each moved for summary judgment on the ground that liability on Santana’s federal statutory and state common law claims is foreclosed or severely restricted by application of the Noerr/Pennington doctrine. Specifically, defendants contend that the Noerr/Pennington doctrine precludes liability for alleged injuries resulting from decisions of governmental actors to adopt bid specifications that effectively excluded Santana’s HDPE toilet partitions. As explained by our Court of Appeals, Noerr/Pennington immunity extends to two separate types of injury: A petitioner may be immune from the antitrust injuries which result from the petitioning itself. See Noerr, 365 U.S. at 143, 81 S.Ct. 523, 5 L.Ed.2d 464 (finding trucking industry plaintiffs’ relationships with their customers and the public were hurt by the railroads’ petitioning activities, yet the railroads were immune from liability). Also, ... parties are immune from liability arising from the antitrust injuries caused by government action which result from the petitioning. See Pennington, 381 U.S. at 671, 85 S.Ct. 1585, 14 L.Ed.2d 626 (holding plaintiffs could not recover damages resulting from the state’s actions) .... Therefore, if its conduct constitutes valid petitioning, the petitioner is immune from antitrust liability whether or not the injuries are caused by the act of petitioning or are caused by government action which results from the petitioning. Bedell, 263 F.3d at 251. Defendants assert that Santana’s claims are premised upon decisions made by governmental actors, and are therefore barred by Noerr/Pennington. “[T]he right to petition extends to all departments of the Government.” Cal. Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 510, 92 S.Ct. 609, 30 L.Ed.2d 642 (1972). Protected “petitioning” activity runs the gamut of efforts to persuade governmental actors, extending well beyond “filing formal grievances directly with the government.” Bedell, 263 F.3d at 252. It encompasses not only direct lobbying of legislative and executive officials, but also publicity campaigns and other marketing efforts. See Allied Tube & Conduit Corp. v. Indian Head, Inc., 486 U.S. 492, 510, 108 S.Ct. 1931, 100 L.Ed.2d 497 (1988)(“Petitioner, and others concerned about the safety or competitive threat of polyvinyl chloride conduit, can, with full antitrust immunity, engage in concerted efforts to influence [state and local] governments through direct lobbying, publicity campaigns, and other traditional avenues of political expression.”). In this case, the conduct challenged by Santana consisted of a multi-faceted advertising campaign that sought to address the “competitive threat” of HPDE toilet partitions by representing that the partitions were subject to flammability requirements for wall finish, as opposed to those applicable to furniture and fixtures, and by disseminating information concerning the flammability of HPDE compartments. Such a campaign, to the extent it targeted governmental decisionmakers, falls within the broad ambit of Noerr/Pennington. Id. Santana, however, contends that the nature and context of the defendants’ activities remove this case from the Noerr/Pen-nington doctrine. Santana alternatively asserts that this case falls within several purported exceptions to Noerr/Pennington immunity. 1. Defendants’ Activities Are Within the Ambit of Noerr/Pennington Immunity Observing that the scope of immunity nonetheless “depends on the source, context, and nature of the anticompetitive restraint at issue,” id. at 499, 108 S.Ct. 1931, Santana argues that Bobrick’s conduct is not entitled to protection. In support of its position, Santana relies principally on Allied Tube. The “relevant context” for the anticom-petitive activity at issue in Allied Tube was “the standard-setting process of a private association.” Id. at 500, 108 S.Ct. 1931. Specifically, manufacturers of steel electrical conduit conspired to exclude polyvinyl chloride (“PVC”) conduit from the National Fire Protection Association’s National Electrical Code. Plaintiff itself had sought to have PVC conduit included in the 1981 edition of the Code as an approved type of electrical conduit. The defendant and other steel conduit manufacturers agreed to rig the voting on the plaintiffs proposal by packing the annual meeting of the NFPA with persons whose only function would be to vote against the PVC proposal. Defendant’s effort was successful: PVC was not approved as an electrical conduit material in the 1981 Code. The Court ruled that, although it was likely that state and local governments would adopt the 1981 Code, thereby excluding PVC conduit, the activity in question, directed at a private standard-setting association, was not entitled to Noerr/Pennington immunity. Rejecting the “absolutist position that the Noerr doctrine immunizes every concerted effort that is genuinely intended to influence governmental action,” id. at 503, 108 S.Ct. 1931, the Court concluded that “the Noerr immunity of anticompetitive activity intended to influence the government depends not only on its impact, but also on the context and nature of the activity.” Id. at 504, 108 S.Ct. 1931. The Court found that Noerr immunity did not apply to the conduct of the defendant because it occurred “within the confines of a private standard-setting process ... [and][t]he validity of conduct within that process has long been defined and circumscribed by the antitrust laws without regard to whether the private standards are likely to be adopted into law.” Id. at 506, 108 S.Ct. 1931. Asserting that “Bobriek’s and its co-conspirators’ actions took place within the context of ‘standard’ setting and enforcement by a private group of competitors who set and enforced the ASTM E-84 standard against HDPE toilet compartments because it was known that those products did not meet the smoke development index of the NFPA Life Safety Code,” (Rev. Mem. in Opp. to Bobrick’s S.J. Mot., Dkt. Entry 391, at 25), Santana argues that “the context and nature of the present horizontal conspiracy is [sic] very clearly the type of commercial activity regulated by the antitrust laws.” (Id.) There are indeed excerpts from the majority opinion in Allied Tube that support Santana’s position. For example, the Court’s observation that “the antitrust laws should not necessarily immunize what are in essence commercial activities simply because they have a political impact,” Allied Tube, 486 U.S. at 507, 108 S.Ct. 1931, viewed in isolation, supports a conclusion that Noerr immunity should not pertain here. Bo-brick’s activities were plainly commercial in nature, and application of the antitrust laws to such activity has intuitive appeal. But the Court in Allied Tube carefully circumscribed the reach of its decision: “Our holding is expressly limited to cases where an ‘economically interested party exercises decisionmaking authority in formulating a product standard for a private association that comprises market participants.’ ” Id. at 511 n. 13, 108 S.Ct. 1931 (emphasis in original). The facts of this case do not fall within Allied Tube’s narrow holding. Bobrick and its alleged co-conspirators, individually or in combination, did not exercise any decisionmaking authority in the formulation of a product standard. This is not a case where a private standard-setting association was manipulated by machinations of Santana’s competitors to exclude HDPE toilet compartments from applicable safety codes. Bobrick and its alleged co-conspirators simply advocated an interpretation of an applicable code that was adverse to Santana’s position. This advocacy did not occur within the confines of a private standard setting association, but occurred in the context of a marketing campaign that encompassed public building projects. In this setting, Santana had the ability to advocate its position that toilet compartments should not be subjected to the requirements of wall finish standards and to refute assertions concerning the flammability and smoke characteristics of its product. The decisionmaker at issue in this case is not Santana’s competitors, but the government agent — the specifier — who does not have a commercial interest to advance in determining the building code provisions applicable to toilet partitions. Bobrick merely attempted to influence the specifier’s decision. It did not formulate a product standard, exercise decisionmaking authority, or direct its activities towards a private standards-setting organization. Thus, Santana’s reliance upon Allied Tube is misplaced. There is another delimiting factor in Allied Tube that makes its holding inapplicable here. The plaintiff in Allied Tube did not seek damages resulting from the adoption of the rigged Code standard by any governmental entity. Id. at 500, 108 S.Ct. 1931. Instead, plaintiffs recovery was limited to the theory that “the stigma of not obtaining [Code] approval of its product and Allied’s ‘marketing’ of that stigma caused independent marketplace harm to [plaintiff] in those jurisdictions permitting use of PVC conduit, as well as those that later adopted the 1984 NEC, which permitted use of PVC conduit .... ” Indian Head, Inc. v. Allied Tube & Conduit Corp., 817 F.2d 938, 941 n. 3 (2d Cir.1987)(emphasis added), aff'd, 486 U.S. 492, 108 S.Ct. 1931, 100 L.Ed.2d 497 (1988). Thus, damages resulting from the adoption of the 1981 Code by various government agencies were explicitly excluded from the claim considered by the Supreme Court. See 486 U.S. at 498 n. 2, 108 S.Ct. 1931. Here, by way of contrast, Santana seeks recovery of damages resulting from the effective exclusion of its product from public building specifications attributable to the efforts of Bobrick and its alleged co-conspirators. Illustrating the significance of this distinguishing feature of Allied Tube is the Ninth Circuit’s decision in Sessions Tank Liners, Inc. v. Joor Manufacturing, Inc., 17 F.3d 295 (9th Cir.), cert. denied, 513 U.S. 813, 115 S.Ct. 66, 130 L.Ed.2d 23 (1994). At issue in Sessions was the activity of a storage tank manufacturer in the amendment of a model fire code to the disadvantage of the defendant’s competitor, Sessions Tank Liners, Inc. (“Sessions”). Sessions was involved in the business of “repair[ing] leaking storage tanks in place by cutting them open, lining their interiors with a protective coating of epoxy, and resealing them.” Id. at 296. The defendant, Joor Manufacturing, Inc., produced underground storage tanks. While the cost of lining a leaking new tank was approximately the same as the cost of a new replacement, tank lining proved “cheaper than tank replacement ... because lining [did] not entail the additional costs of removing and discarding the leaking tank and installing a new one,” and “[did] not require the lengthy interruption of business that tank replacement often involve[d].” Id. Tank lining, however, required a government permit. Joor caused the amendment of a model fire code to require that leaking tanks be removed. In effect, the amendment was tantamount to a ban on tank lining. Id. at 297. Claiming that this conduct violated federal antitrust laws and California tort law, Sessions brought an antitrust and unfair competition action in federal court. The district court ruled that Joor was entitled to Noerr immunity, No. 84-6363 MRP, 1986 WL 31689 (C.D.Cal. Jan. 17, 1986), and the Ninth Circuit, in relevant part, agreed. 827 F.2d 458 (9th Cir.1987). The Supreme Court, however, vacated the Ninth Circuit ruling and remanded the matter for further consideration in light of Allied Tube. Sessions Tank Liners, Inc. v. Joor Manufacturing, Inc., 487 U.S. 1213, 108 S.Ct. 2862, 101 L.Ed.2d 899 (1988). The case then went back to the district court, which conducted a bench trial. The trial court found that Joor had knowingly made false statements to the standard setting organization that caused the effective ban on tank lining. The district court further found that prior to and immediately after the adoption of the code amendment, “Joor ‘marketed’ the stigma which it had caused the [standards-setting organization] to place on tank lining by sending letters to public agencies and customers urging its prohibition.” 786 F.Supp. 1518, 1532 (C.D.Cal.1991). As does Santana here, Sessions claimed, and the district court found, that prior to the amendment of the code, Sessions’ business was expanding, but that it declined sharply following adoption of the code amendment. Sessions also proved that it was receiving permits freely before the code amendment, but was denied them thereafter and that it was denied permits even before any local government would have been able to adopt the code amendment. Id. The district court concluded that, under these circumstances, Allied Tube dictated the conclusion that Joor was not shielded by Noerr immunity. The Ninth Circuit reversed. In finding that Allied Tube did not abrogate immunity for Joor’s conduct, the Ninth Circuit explained that Noerr petitioning immunity “has its roots in the Supreme Court’s decision in Parker v. Brown, 317 U.S. 341, 350, 63 S.Ct. 307, 87 L.Ed. 315 (1943).” Sessions, 17 F.3d at 298. Parker “held that the Sherman Act does not prohibit an anti-competitive restraint imposed by a state as an act of government.” Mass. School of Law at Andover, Inc. v. Am. Bar Ass’n, 107 F.3d 1026, 1035 (3d Cir.1997). The holding in Noerr was “a corollary to Parker: The federal antitrust laws ... do not regulate the conduct of private individuals in seeking anticompetitive action from the government.” City of Columbia v. Omni Outdoor Adver., Inc., 499 U.S. 365, 379-80, 111 S.Ct. 1344, 113 L.Ed.2d 382 (1991). Thus, “ ‘where a restraint upon trade or monopolization is the result of valid governmental action, as opposed to private action,’ those urging the governmental action enjoy absolute immunity from antitrust liability for the anticompetitive restraint.” Allied Tube, 486 U.S. at 499, 108 S.Ct. 1931. The Ninth Circuit in Sessions recognized the critical distinction between harm caused by the inability to procure a government permit (valid state action) and harm to competition independent of such state action. Holding that the evidence showed that Sessions’ injuries were directly attributable to the inability to secure requisite permits from governmental entities, the Ninth Circuit ruled that liability could not be imposed upon Joor: In applying Allied to Joor’s conduct, the district court overlooked a key distinction between Allied and this case. The plaintiff in Allied was awarded damages only on the theory that the stigma of banning the plaintiffs product from a uniform code caused independent marketplace harm to the plaintiff in jurisdictions that permitted the use of the plaintiffs products. In contrast, Sessions has never proved that it sustained injuries from anything other than the actions of municipal authorities: Sessions has not shown that any potential tank lining customer, in jurisdictions that were not enforcing the ... tank removal provision decided not to engage Sessions’ services because of the [Code amendment]. Nor has Sessions adduced any evidence that Joor’s actions caused independent marketplace harm in jurisdictions that continued to permit tank lining. Unlike the plaintiff in Allied, Sessions was not awarded damages on the theory that Joor’s ‘marketing the stigma’ of [the Code amendment] caused Sessions any loss of business independent of the losses resulting from the permit denials. The injuries for which Sessions seeks recovery flowed directly from government action. This fact takes the case entirely out of the realm of Allied. íjí ^ v ^ ^ To rule otherwise and hold Joor liable for injuries flowing from governmental decision-makers’ imposition of an anti-competitive restraint, we would have to find that the restraint was imposed because of Joor’s petitioning efforts. Proof of causation would entail deconstructing the decision-making process to ascertain what factors prompted the various governmental bodies to erect the anticompetitive barriers at issue. This inquiry runs afoul of the principles guiding the Parker and Noerr decisions. 17 F.3d at 299, 300 (citations omitted)(emphasis added). Santana’s argument that Allied Tube is controlling here does not distinguish between harm caused as a result of specifications adopted for public building projects that excluded its products and harm resulting from the “stigma” attached to its products that caused it to lose business in the non-public sector. Allied Tube did not sanction the conflation of harm caused by governmental adoption of a product standard or requirement, on the one hand, and harm caused independent of the adoption of the standard. Buttressing this conclusion is the Third Circuit’s analysis in Massachusetts School of Law, 107 F.3d at 1034-37. After being denied ABA accreditation, the Massachusetts School of Law (“MSL”) sued the ABA and others on the theory that they had conspired to organize and enforce a group boycott in violation of section 1 of the Sherman Act and conspired to monopolize legal education, law school accreditation, and the licensing of attorneys, in violation of section 2 of the Sherman Act. MSL asserted several types of injury resulting from the ABA’s allegedly anti-competitive conduct, including a decline in enrollments because graduates of unaccredited schools cannot take the bar examination in most states. Judge Green-berg, writing for the unanimous Third Circuit panel, defined the: substantive issues on this appeal [as] whether state or private conduct caused the injury MSL alleges it suffered because its graduates could not take the bar examination in most states, and whether, if MSL suffered an injury as a result of the ABA’s conduct, the injury was an incidental effect of the ABA’s attempt to influence the states with respect to establishing criteria for bar admission. Id. at 1035. Distinguishing Allied Tube on the ground that its holding “specifically excluded from consideration any injury resulting from the adoption of the challenged standards by any government and dealt only with the independent marketplace effect of the defendant’s conduct,” id. at 1036 n. 8, the Third Circuit concluded that alleged injury arising from the inability of MSL graduates to take the bar examination in most states could not form the basis for antitrust injury. In reaching the result that there was immunity from damages caused by declining enrollments attributable to the states giving effect to the ABA adverse accreditation decision, the Third Circuit cited with approval the Ninth Circuit ruling in Sessions. Id. at 1036. In short, the Third Circuit recognized that there is immunity from antitrust liability where, as here, “the ‘injuries for which [plaintiff] seeks recovery flowed directly from government action.’ ” Id. (quoting Sessions, 17 F.3d at 299). This principle was reiterated by the Third Circuit in Armstrong Surgical Center, Inc. v. Armstrong County Memorial Hospital, 185 F.3d 154 (3d Cir.1999). In Armstrong, the plaintiff claimed, inter alia, that the defendants’ threat to boycott plaintiffs outpatient surgery center violated the federal antitrust laws. Defendants claimed immunity to liability on the ground that the threatened boycott had been communicated to the Pennsylvania Department of Health during its consideration of plaintiffs Certificate of Need (“CON”) application, and that the plaintiffs alleged injuries resulted solely from the decision of the Department of Health to deny the CON. The Third Circuit agreed with the defense position. Writing for the majority in Armstrong, Judge Stapleton observed: [E]ven where the same petitioning conduct might give rise to antitrust liability for injury directly caused to a competitor in the marketplace, if relief is sought solely for injury as to which the state would enjoy immunity under Parker, the private petitioner also enjoys immunity.... * * * * JY- * In sum, where, as here, all of the plaintiffs alleged injuries result from state action, antitrust liability cannot be imposed on a private party who induced the state action by means of concerted anticompetitive activity. Id. at 159,160. Another argument advanced by Santana is that Noerr immunity is not available where the defendant “attempted directly to persuade anyone not to deal with” the plaintiff. (Rev. Memo, in Opp. to Bobrick’s S.J. Mot., Dkt. Entry 391, at 30 n. 12, quoting Mass. School of Law, 107 F.3d at 1038 (quoting Noerr, 365 U.S. at 142, 81 S.Ct. 523.)) Specifically, Santana asserts: In the present case, it is undisputed that Bobrick and its co-conspirators not only stated the position that the NFPA/ ASTM E-84 standards applied to Santana but that they engaged in actual conduct directed at Santana’s customers and potential customers to enforce the standard in the marketplace. In sum, the MSL decision clearly supports a denial of Bobrick’s Noerr defense. (Id., citation omitted.) The language from Noerr on which Santana relies was used in responding to the lower court’s holding that the railroads sought the legislation with the primary intent to hurt the truckers, even if they secured no legislation. In rejecting this contention, the Court explained: The apparent effect of these findings is to take this ease out of the category of those that involve restraints through governmental action and thus render inapplicable the principles announced above. But this effect is only apparent and cannot stand under close scrutiny. There are no specific findings that the railroads attempted directly to persuade anyone not to deal with the truckers. Moreover, all of the evidence in the record, both oral and documentary, deals with the railroads’ efforts to influence the passage and enforcement of laws. Circulars, speeches, newspaper articles, editorials, magazine articles, memoranda and all other documents discuss in one way or another the railroads’ charges that heavy trucks injure the roads, violate the laws and create traffic hazards, and urge that truckers should be forced to pay a fair share of the costs of rebuilding the roads, that they should be compelled to obey the laws, and that limits should be placed upon the weight of the loads they are permitted to carry. In the light of this, the findings of the District Court that the railroads’ campaign was intended to and did in fact injure the truckers in their relationships with the public and with their customers can mean no more than that the truckers sustained some direct injury as an incidental effect of the railroads’ campaign to influence governmental action and that the railroads were hopeful that this might happen. Noerr, 365 U.S. at 142-43, 81 S.Ct. 523 (emphasis added). From this language, our Court of Appeals gleaned an exception to Noerr immunity where the defendant attempts directly to persuade anyone not to deal with the plaintiff. Mass. School of Law, 107 F.3d at 1038. Santana overlooks, however, the court’s limited application of this exception. In the Mass. School of Law case, the court found the exception inapplicable because, inter alia: if a claim for stigma injury could be advanced in circumstances [where the plaintiff was mentioned incidental to statements defending the defendant’s standard], Noerr immunity would be confined severely; a petitioner for governmental action is likely to urge that the action is needed to ensure that standards are met, thereby suggesting that some entities do not meet appropriate standards. Id. Upon reviewing the evidence, it is apparent that Santana inaccurately summarizes the defendants’ campaign as stating that the NFPA/ASTM E-84 standards applied to Santana. (Rev. Memo, in Opp. to Bobrick’s S.J. Mot., Dkt. Entry 391, at 30 n. 12.) Rather, the defendants attempted through various means to persuade architects and specifiers for public building projects that certain building code standards applied to toilet partitions. The defendants then represented to the architects and specifiers that HDPE did not meet this standard. While the goal of this campaign was, clearly, to take business away from Santana and other HDPE manufacturers, (Pl.Rev.Stat. of Material Facts/Sherman Act, Dkt. Entry 382, ¶¶ 69, 71-73, 90, 91, 99, 101, 102, 103, 104, 107, 109, 111, 116), “Noerr shields from the Sherman Act a concerted effort to influence public officials regardless of intent of purpose.” Pennington, 381 U.S. at 670, 85 S.Ct. 1585. Indeed, the fact that the goal of the railroads in Noerr was to injure trucking companies did not vitiate their immunity. See Noerr, 365 U.S. at 143-44, 81 S.Ct. 523. Furthermore, such a broad interpretation of this exception is not supported by more recent cases. Both Cheminor Drugs, Ltd. v. Ethyl Corp., 168 F.3d 119, 120 (3d Cir.1999), and Armstrong, involved defendants who attempted to persuade the government not to “deal” with a specific entity. In Cheminor, an American ibuprofen manufacturer filed petitions with the Department of Commerce and the United States International Trade Commission requesting imposition of anti-dumping and countervailing duties on imports of bulk ibuprofen from an Indian manufacturer. Armstrong dealt with the concerted action of a hospital and several doctors to prevent the plaintiff from establishing an ambulatory surgery center. Although these cases involved a different context from the matter sub judice, they show that targeting petitioning activity at one entity, by itself, does not fall into the Noerr exception for direct persuasion not to deal. Looking at these eases as a whole, this exception should apply only when the petitioning activity consists solely of an attempt to persuade a customer to not deal with the plaintiff, without presenting broader justifications. In Mass. School of Law, the ABA did not merely state that “MSL is a bad institution, or that a particular student should not go there,” but that the school failed to satisfy the ABA’s accreditation process. 107 F.3d at 1038. In Noerr, the railroads pointed to the negative impact of trucking on roads and safety. Here, the defendants did not coerce the architects or specifiers to not deal with Santana, but argued that HDPE (Santana’s product) failed to meet what the defendants considered the governing safety test and could be a fire hazard. Whether or not such assertions are true is not relevant to this analysis. Thus, to the extent that Santana premises its damages on decisions made by public officials or their agents (i.e., architects and others advising public officials) who approved specifications for phenolic toilet partitions or disapproved specifications for HDPE toilet partitions, defendants are immune from liability. Cf. TEC Cogeneration, Inc. v. Fla. Power & Light Co., 76 F.3d 1560, 1572 (11th Cir.1996)(recognizing Noerr ¡Pennington immunity for defendant’s conduct in successfully lobbying agency to vote against construction of competing electrical transmission line because “[a]bsolute immunity from antitrust liability results where the restraint upon trade or monopolization is the result of valid governmental action as opposed to private action”); Bristol-Myers Squibb Co. v. Ivax Corp., 77 F.Supp.2d 606, 612 (D.N.J.2000) (holding that conduct in securing governmental exclusive marketing privileges for an anticancer drug was not subject to antitrust liability because the alleged injuries sustained by the plaintiff “were the ‘direct result’ of decisions made by government agencies”). 2. There Is No “Commercial” Exception to Noerr/Pennington Immunity Santana asserts that even if defendants’ conduct falls within the Noerr/Pennington doctrine, immunity is not available where, as here, governmental units are the purchasers of the products at issue. (Rev. Mem. in Opp. to Bobrick’s S.J. Mot., Dkt. Entry 391, at 26.) In support of this assertion, Santana cites Federal Trade Commission v. Superior Court Trial Lawyers Association, 493 U.S. 411, 110 S.Ct. 768, 107 L.Ed.2d 851 (1990). In Trial Lawyers, attorneys providing representation to indigent criminal defendants under the District of Columbia Criminal Justice Act (“CJA”) agreed to decline acceptance of any new cases until the CJA rate of compensation was increased. The group boycott proved to be successful, but prompted a complaint by the Federal Trade Commission that the attorneys had entered into an illegal agreement to restrain trade. The Court distinguished Noerr on the ground that “the alleged restraint of trade was the intended consequence of public action; in this case, the boycott was the means by which respondents sought to obtain favorable legislation.” Id. at 424-25, 110 S.Ct. 768. The Court further observed that “[t]he restraint of trade that was implemented while the boycott lasted would have had precisely the same anticompeti-tive consequences during the period even if no legislation had been enacted.” Id. at 425, 110 S.Ct. 768. In the matter sub judice, Bobrick sought to convince government decision-makers to specify phenolic compartments or to exclude HDPE partitions. It was the actions of the governmental decision-makers that imposed the challenged restraint. In Trial Lawyers, by way of contrast, the desired governmental action ended the restraint. The Third Circuit in Armstrong recognized the significance of this distinction: The limitation