Full opinion text
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S FIRST MOTION FOR SUMMARY JUDGMENT JOHN A. WOODCOCK, JR., UNITED STATES DISTRICT JUDGE In this federal and state antitrust action, Puerto Rico Telephone Company, Inc. (PRTC) claims that San Juan Cable Company LLC d/b/a OneLink Communications (OneLink) violated antitrust laws by conducting “sham” litigation over a period of four years, which PRTC claims delayed its entry into the competitive market. In view of the record and Supreme Court caselaw, the Court concludes that under Federal Rule of Civil Procedure 56, OneLink is entitled to summary judgment for those events that fall within the scope of Noerr-Pennington immunity and for those time periods that otherwise do not raise a genuine dispute of material fact. The Court denies OneLink’s motion for summary judgment for the remaining periods as there are genuine disputes of material fact that require jury resolution. I. STATEMENT OF FACTS A. Procedural History On November 22, 2011, PRTC filed a complaint against OneLink, alleging in two counts that OneLink violated Sections 2 and 3 of the Sherman Act, 15 U.S.C. §§ 2-3, and two counts that OneLink violated the corresponding Puerto Rico Anti-Monopoly Act, P.R. Laws AnN. 10, § 260. Compl. ¶¶ 7, 61-92 (ECF No. 1). On December 16, 2011, PRTC filed an amended complaint containing the same alleged violations of federal and state antitrust law. Am. Compl. ¶¶ 7, 64-95 (ECF No. 11). As pertains to this Order, PRTC alleges that OneLink “embarked on a course of conduct designed to thwart, or at a minimum delay, PRTC’s entry into OneLink’s markets” by “hijacking of Board proceedings, numerous unsuccessful motions to disqualify one of the commissioners, and the filing and vigorous prosecution of multiple objectively baseless lawsuits in both state and federal court — every one of which (with the exception of the most recent attack which has not yet been ruled upon by the court) was resolved against OneLink.” Id. ¶ 4. On January 24, 2012, OneLink filed a motion to dismiss PRTC’s Amended Complaint. Def.’s Mot. to Dismiss Pl,’s Am. Compl. (ECF No. 22) (Mot. to Dismiss). PRTC filed its opposition to OneLink’s motion to dismiss on February 24, 2012, and OneLink replied on March 9, 2012. Pl.’s Opp’n to Def.’s Mot. to Dismiss Pl.’s Am. Compl. (ECF No. 23); Def.’s Reply in Further Support of Its Mot. to Dismiss Am. Compl. (ECF No. 25). On August 10, 2012, Judge Gelpi denied OneLink’s motion to dismiss, and subsequently affirmed his decision on OneLink’s motion for reconsideration on September 13, 2012. Opinion and Order (ECF No. 30) (First Opinion and Order)-, Opinion and Order (ECF No. 45) (Second Opinion and Order). Judge Gelpi also denied OneLink’s request for interlocutory appeal to the First Circuit. Second Opinion and Order. On October 5, 2012, OneLink answered the Amended Complaint, denying its essential allegations and asserting nine affirmative defenses. Answer to Am. Compl. (ECF No. 50) (Answer). After nearly a year of discovery, OneL-ink filed a motion for summary judgment with a supporting statement of material facts on October 11, 2013. Def.’s Mot. for Summ. J. (ECF No. 198) (Def.’s Mot.)-, Def.’s Statement of Undisputed Material Facts in Support of Its Mot. for Summ. J. (ECF No. 199) (DSMF). PRTC responded to OneLink’s motion and its statement of material facts, and filed a statement of additional material facts on November 7, 2013. Pi’s Opp’n to Def.’s Mot. for Summ. J. (ECF No. 215) (Pi’s Opp’n)-, Pi’s Opposing Statement of Material Facts (ECF No. 216) (PRDSMF; PSAMF). On November 22, 2013, OneLink replied to PRTC’s response and to its statement of additional material facts. Def.’s Reply Br. in Support of Its Mot. for Summ J. (ECF No. 226) (Def.’s Reply)-, Reply to Pi’s Opposing Statement of Material Facts and Statement of Additional Material Facts (ECF No. 227) (DRPSAMF). On November 27, 2013, PRTC filed a surreply. PI. ’s Surreply in Opp’n to Def.’s Mot. for Summ. J. (ECF No. 231) (Pi’sSurreply). On December 4, 2014, Judge Gelpi re-cused himself from presiding over this case, and on January 26, 2015, the case was reassigned to this Judge. Order (ECF No. 305); Notice of Judge Assignment (ECF No. 307). The Court held oral argument on OneLink’s motion for summary judgement on May 31, 2016. Entry (ECF No. 315); Tr. of Proceedings (ECF No. 319) (Tr.). B. Factual Background 1. PRTC’s First Application for a Video Franchise in February 2008; Application Denied in October 2008 PRTC filed its first application for a video franchise in February 2008. DSMF ¶ 1; PRDSMF ¶ 1. PRTC’s first application was unanimously denied by the Telecommunications Regulatory Board of Puerto Rico (TRB) on October 29, 2008. DSMF ¶ 2; PRDSMF ¶ 2. In denying PRTC’s first application for a video franchise, the TRB stated that it had based its decision on the application and on testimony submitted at a public hearing held in September and October 2008; the TRB made 22 separate determinations of findings of fact, including Number 3, which notes that OneLink submitted comments to the TRB as an interested party. DSMF If 3; PRDSMF ¶ 3. During the interval between February 2008 and November 2008, OneLink filed no litigation against or relating to PRTC in any Puerto Rico or federal court. DSMF ¶ 4; PRDSMF ¶ 4. 2. PRTC’s Second Application for a Video Franchise in December 2008; OneLink’s Litigation between January 2009 and November 2011; Application Granted in November 2011 On December 11, 2008, PRTC submitted a second application for a video franchise to the TRB. DSMF ¶ 5; PRDSMF ¶5. Commencing on January 13, 2009, OneL-ink filed four motions with the TRB, three of which were unsuccessful, and one complaint in this Court naming the TRB as a defendant: (1) Motion to Intervene before the TRB (filed January 13, 2009, denied March 2, 2009); (2) Motion to Vacate or Stay Confidentiality Determinations (filed January 30, 2009, denied March 2, 2009); (3) Urgent Motion for Extension of Time to file Comments (filed February 11, 2009, denied February 17, 2009); (4) Urgent Motion to Dismiss PRTC Application (filed February 25, 2009); and (5) Cable Act Complaint (filed February 10, 2009 in federal court, district court order on OneL-ink’s motion for injunctive relief finding that it has demonstrated a “strong likelihood of success on the merits” on February 18, 2009, and dismissed as moot on February 24, 2009). PSAMF ¶ 1; DRPSAMF ¶ 1. Based on the filing of the Motion to Intervene before the TRB by OneLink, and motions for protection of confidential information filed by PRTC, the TRB vacated the previously scheduled February 11-13, 2009 hearing dates, and reset them for March 4-6, 2009., PSAMF ¶ 2; DRPSAMF ¶ 2. On March 3, 2009, before the TRB’s scheduled hearing on PRTC’s second application for a video franchise and at the request of OneLink, the Puerto Rico Court of Appeals issued an order staying the TRB’s consideration thereof, and on April 24, 2009 extended the stay until March 31, 2009. DSMF ¶ 6; PRDSMF ¶ 6; PSAMF ¶ 3; DRPSAMF ¶ 3. As of the lifting of the stay by the Puerto Rico Court of Appeals on March 31, 2009, the TRB had not ruled on the Urgent Motion to Dismiss PRTC Application. PSAMF ¶ 5; DRPSAMF ¶ 5. OneLink then filed additional motions and memoranda with the TRB: (1) Emergency Motion to Show Cause (filed April 7, 2009); (2) Opposition to PRTC’s Motion to File Reply Comments (filed April 23, 2009, denied May 13, 2009); and (3) Motion to Set Aside Public Hearing (filed April 27, 2009, denied May 1, 2009)., PSAMF ¶ 6; DRPSAMF ¶ 6. On May 20, 2009, before the TRB’s rescheduled hearing on PRTC’s second application for a video franchise and at the request of OneLink, the Puerto Rico Supreme Court issued an order staying the TRB’s consideration thereof; the stay remained in effect until October 26, 2010. DSMF ¶ 7; PRDSMF ¶7. As of October 26, 2010, OneLink had no pending litigation against or relating to PRTC in any Puerto Rico or federal court. DSMF ¶ 8; PRDSMF ¶ 8. On November 24, 2010, TRB proceedings on PRTC’s franchise application resumed after the Supreme Court rejected OneLink’s appeal; the TRB notified the parties named in the Resolution and Order on December 21, 2010. PSAMF ¶ 8; DRPSAMF ¶ 8. On January 3, 2011, PRTC supplemented its application given the two years since its December 2008 submission. PSAMF ¶ 9; DRPSAMF ¶ 9. Before the TRB could set a hearing date, on January 20, 2011, OneLink filed a motion to recuse TRB President Sandra Torres from any further involvement in the proceedings. PSAMF ¶ 10; DRPSAMF ¶ 10. President Torres, in her capacity as President and Associate Member of the TRB, sought advice from the Office of Government Ethics of Puerto Rico (OGE) in a letter dated February 24, 2011, and on March 29, 2011, the OGE responded and concluded that there was no merit to OneLink’s claims. PSAMF ¶ 11; DRPSAMF ¶ 11. On April 6, 2011, the TRB scheduled a hearing on PRTC’s franchise application for April 27, 2011. PSAMF ¶ 12; DRPSAMF ¶ 12. In total, ninety-seven days passed from the time OneLink filed its Motion for Recusal for the TRB’s consideration, the time OGE responded to President Torres’ inquiry, and April 27, 2011, the date the TRB held the hearing on PRTC’s franchise application. PSAMF ¶ 18; DRPSAMF ¶ 13. The TRB did not grant PRTC’s second application for a video franchise until November 2011. DSMF ¶ 9; PRDSMF ¶9. Between the lifting of the judicial stay on October 26, 2010, and the order granting PRTC’s second application for a video franchise in November 2011, OneLink had no pending litigation against or relating to PRTC in any Puerto Rico or federal court. DSMF ¶ 10; PRDSMF ¶ 10. 3. OneLink Files Suit in this Court against the TRB in November 2011; the TRB Agrees to Postpone Approval of PRTC’s Franchise Agreement until January 31, 2012 On November 29, 2011, after the TRB approved PRTC’s franchise application, OneLink filed suit against the TRB in federal court, alleging violations of 42 U.S.C. § 1983 and 47 U.S.C. § 521 (Cable Act). PSAMF ¶ 14; DRPSAMF ¶ 14. At the same time, OneLink filed a Motion for a Temporary Restraining Order (TRO) and Preliminary Injunction, requesting that the Order approving PRTC’s franchise application be stayed. PSAMF ¶ 15; DRPSAMF ¶ 15. On December 2, 2011, the TRB agreed to postpone its approval of the franchise agreement with PRTC until January 31, 2012 in exchange for the agreement by OneLink and Choice Cable (Choice) to withdraw their request for a TRO in the federal lawsuit filed in late November 2011, and the TRB agreed to provide OneLink with no less than seven days’ notice before taking any action with respect to approving a franchise agreement for PRTC., DSMF ¶ 11; PRDSMF ¶ 11; PSAMF ¶ 16; DRPSAMF ¶ 16. 4. The TRB Approves PRTC’s Franchise Agreement on February 1, 2012 Subsequently, the TRB approved PRTC’s video franchise agreement on February 1, 2012. DSMF ¶ 12; PRDSMF ¶ 12; PSAMF ¶ 17; DRPSAMF 1117. By then, sixty-three days had passed since OneLink filed its lawsuit in federal court. PSAMF ¶ 18; DRPSAMF ¶ 18. 5. Events Subsequent to the TRB’s Approval of PRTC’s Franchise Agreement until April 4, 2012 After the TRB approved PRTC’s franchise agreement on February 1, 2012, OneLink continued to file and prosecute three more unsuccessful motions and petitions, including a motion to stay the grant of PRTC’s application and approval of its franchise agreement, and a petition for reconsideration and in further support of intervention. PSAMF ¶19; DRPSAMF ¶ 19. Following this additional litigation initiated by OneLink with the TRB, the TRB ruled on OneLink’s numerous motions relating to PRTC’s franchise and declared on April 4, 2012 that PRTC “is authorized to operate its video service throughout the entire Island of Puerto Rico using an Internet Protocol technology platform known as ‘Claro TV.’ ” , DSMF ¶ 12; PRDSMF ¶ 12; PSAMF ¶ 20; DRPSAMF ¶ 20. From October 20, 2009 through August 17, 2012, in a number of TRB legal memoranda, the regulatory agency argued that OneLink engaged in a “prolonged campaign” of “abusing the judicial appeals process” in order to “preserve [its] regional monopoly over the sale of cable-TV services” and prevent PRTC from obtaining its cable franchise; in a April 4, 2012 order the TRB stated that it wanted to “formally ¡ist all [11] legal proceedings and other challenges that OneLink has lodged to no effect_[OneLink’s] theories have failed in a variety of forums where they have been filed because, simply, they are unsupported by law, from substantive and procedural points of view.” PSAMF ¶¶ 21-27; DRPSAMF ¶¶ 21-27. In total, PRTC spent over $3.2 million to defend the petitions and lawsuits and incurred additional costs in consultants, lawyers and management time during the approval process. PSAMF ¶ 28; DRPSAMF ¶ 28. II. THE PARTIES’ POSITIONS A. Defendant’s Motion OneLink argues that summary judgment is proper because its “lawsuits simply did not cause the injury that PRTC has consistently alleged as the basis for its antitrust claim.” Def.’s Mot. at 1. Instead, according to OneLink, any delays in approving PRTC’s franchise application and agreement were the result of “governmental acts.” Id. at 2. As a result, OneLink contends, antitrust liability may not follow because “[i]t is well established that the state is absolutely immune from antitrust liability for its own acts.” Id. Furthermore, it says that federal case-law has “repeatedly held that private parties cannot be held liable for the anti-competitive effects of government action either — even if those parties asked for that action and even if their petitions for such action were ‘shams’ intended only to cause harm.” Id. Citing Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961), OneLink asserts that “litigation conduct is ordinarily protected from liability by the First Amendment, subject to a narrow exception that a litigant may be held liable for ‘direct injury’ caused by its ‘sham’ litigation.” Def.’s Mot. at 3. Here, says OneLink, there is no direct injury because PRTC’s theory is based on state actors (i.e., the Puerto Rico courts and the TRB), which, once again, “are absolutely immune from any antitrust liability, whether they were induced by ‘sham’ litigation or not.” Id. (emphasis in original). OneLink proceeds to give a chronology of events. Id. at 3-8. Notably, OneLink concedes that it “filed two federal suits relating to PRTC’s illegal construction of its video network prior to receipt of a government franchise”; however, it argues that none of that litigation affected the ability of the TRB to consider PRTC’s franchise application, rather, the TRB proceeding had previously been stayed by the Puerto Rico courts. Id. at 6. For example, “this second [federal] suit was resolved in its entirety before the Puerto Rico Supreme Court’s stay was lifted and it therefore did not affect the TRB’s schedule in acting on PRTC’s application.” Id. (emphasis in original). Similarly, OneLink concedes that it filed two state suits while the TRB proceeding was stayed, but once again, they note that these cases were fully resolved “while the Supreme Court’s stay of the TRB proceeding was in effect, and therefore neither had any impact on that proceeding.” Id. at 7. Once the stay was lifted, OneLink says, “the TRB was free to act on its own terms and its own schedule.” Id. Next, OneLink contends that PRTC has failed to establish that its pursuit of litigation actually caused PRTC’s alleged injury, and that alone is detrimental to its claim. Id. at 10 (citing Sullivan v. Nat’l Football League, 34 F.3d 1091, 1103 (1st Cir.1994)). OneLink explains: [I]t is clear from the undisputed facts that any delay in approving PRTC’s franchise stemmed from (i) PRTC’s own failure to file a meritorious application in February 2008, leading the TRB to deny it; (ii) the Puerto Rico courts’ decisions to stay TRB proceeding on PRTC’s second application, effectively until October 2010; (iii) the TRB’s timing of its own processing of PRTC’s second application from November 2010 until November 2011; and (iv) the TRB’s voluntary decision to postpone signing a franchise agreement from November 2011 until February 2012. None of these delays is legally attributable to OneLink’s litigation. Id. (emphasis in original). Addressing in inore detail its contention that private parties are immune from liability for antitrust injury when it is caused by state action, OneLink explains that PRTC must show causation, but “[t]he action by the government is held to break the causal link between the private party’s conduct and the antitrust injury. To be sure, ‘sham’ petitioning may be penalized if it causes direct market injury, but no case or doctrine allows liability to be imposed for harm that flows from government action merely because the private party successfully requested that action.” Id. at 11 (emphasis in original) (citing Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315 (1943); Interface Grp., Inc. v. Mass. Port Auth., 816 F.2d 9, 12-13 (1st Cir.1987); Columbia v. Omni Outdoor Ad-ven, Inc., 499 U.S. 365, 379, 111 S.Ct. 1344, 113 L.Ed.2d 382 (1991)). OneLink next turns to what it refers to as “Noerr immunity” (or “Noerr-Penning-ton immunity”). Id. at 12. According to it, Noerr immunity is made up of “two distinct principles”: (1) No violation of the Sherman Act may occur where it is the result of proper governmental action rather than private action; and (2) “Injuries caused directly by private petitioning are ... potentially actionable only if the petitioning was a mere ‘sham.’ By contrast, injuries caused by state action—that is, only indirectly by petitioning—are always absolutely immune.” Id. (citing Noerr, 365 U.S. at 136, 142-14, 81 S.Ct. 523; Omni, 499 U.S. at 380-81, 111 S.Ct. 1344) (emphasis in OneLink’s original). Based on these principles, OneLink says the “sham exception is thus completely irrelevant where the alleged injury flows from governmental action, because private parties cannot be liable for those injuries under any circumstances.” Id. at 13 (citing Allied Tube & Conduit Corp. v. Indian Head, Inc., 486 U.S. 492, 499-500, 108 S.Ct. 1931, 100 L.Ed.2d 497 (1988)). Furthermore, OneLink argues that First Circuit precedent “bear[s] this rule out.” Id. at 14 (citing Sandy River Nursing Care v. Aetna Cas., 985 F.2d 1138 (1st Cir.1993); Davric Maine Corp. v. Rancourt, 216 F.3d 143, 148 (1st Cir.2000)). OneLink argues that a “[rjeview of the chronology and the indisputable record facts shows that” any alleged injury suffered by PRTC was the result of state action, and thus, “OneLink therefore did not legally cause any harm to PRTC.” Id. at 17. According to OneLink, the relevant time periods for the Court’s review (all of which it says proves it should not be held liable for any alleged antitrust injury) are: (1) February 2008—November 2008 (the TRB denied PRTC’s first application on the merits and OneLink observes that PRTC does not dispute that it did not file any litigation relating to its application during this period); (2) December 2008—October 2010 (the TRB proceeding on PRTC’s second application was stayed twice by Puerto Rico courts, and therefore, OneLink says, “[a]ny delay during this interval was caused by the stays alone, as the TRB itself explained” in its November 16, 2011 Resolution and Order, and constitutes governmental action); (3) November 2010 — November 2011 (the second stay is lifted by the Puerto Rico Supreme Court, OneL-ink had no pending litigation in any court during this period, and thus, OneLink contends, “[t]he TRB’s scheduling during this period was entirely within its own control” as it explained in its November 16, 2011 Resolution and Order); (4) November 16, 2011 — February 8, 2012 (the TRB grants PRTC’s franchise application but agrees not to sign the franchise agreement until February 2012 in exchange for OneLink and Choice’s withdrawal of its federal lawsuit; OneLink argues it cannot be held liable for the TRB’s “conscious, voluntary action ... regarding the timing of the approval of the PRTC franchise”); and (5) February 2012 — Present (OneLink says PRTC has held a valid video franchise since this time and “nothing subsequent to that point is relevant to PRTC’s claim”). Id. at 18-23. B. Plaintiffs Opposition In response to OneLink’s motion, PRTC counters that Judge Gelpi already rejected OneLink’s argument on two occasions, and “OneLink’s motion for summary judgment attempts to disguise this twice-rejected argument by cloaking it in new clothes, namely, the state action doctrine articulated in Parker ....’’ Pl.’s Opp’n at 1 (citing First Opinion and Order at 5; Second Opinion and Order at 2). PRTC urges the Court not “to reopen what has already been decided” based on the law of the case doctrine. Id. at 2. Alternatively, PRTC says that even if this defense is a “new” one, it should be deemed waived under Rule 8(c) because it was never raised in OneLink’s Answer nor added by amendment in accordance with Rule 15(a). Id. PRTC states that while OneLink raised Noerr immunity and protection under the First Amendment in its Answer, neither “implicates the state action doctrine.” Id. at 12 (citing Ansioer ¶¶ 98-99). Additionally, PRTC says that OneLink’s interpretation of Parker is incorrect: While Noerr immunity may be available even if the party fails to achieve the allegedly sought-after outcome, Parker only applies when a party is successful in achieving the desired outcome — typically, state action that impacts its competitors. As the First Circuit has made clear: “an unsuccessful attempt to influence government action may fall within the Noerr-Pennington immunity, but not the Parker immunity.” Id. at 2 (quoting George R. Whitten, Jr. Inc. v. Paddock Pool Builders, Inc., 424 F.2d 25, 29 n. 4 (1st Cir.1970)), (emphasis in PRTC’s original). According to PRTC, “there were no successful outcomes” by OneLink’s actions to “influence government action,” and thus, Noerr immunity does not apply (i.e., stays do not represent successful outcomes). Id. PRTC also contends that aside from the question of immunity based on state action, “[t]here were significant periods of delay caused by OneLink’s sham petitioning that OneLink does not and cannot tie to any alleged ‘state action.’” Id. at 4. Criticizing OneLink’s factual summary for omitting “almost a year of delay” where there was no state action, PRTC points to (1) the four motions and complaint filed by OneLink between January 13, 2009 and March 3, 2009, which it characterizes as having been “unsuccessful” and “objectively baseless,” causing the TRB to resolve these filings rather than focus on the franchise application; (2) the two motions and opposition filed by OneLink between March 31, 2009 and May 20, 2009 following the lifting of the stay, which PRTC claims made the “TRB ... stuck in a web of OneLink petitions until the Supreme Court of Puerto Rico issued its May 20, 2009 stay”; (3) the agreement reached between the TRB, OneLink and Choice, which PRTC characterizes as having been “extorted” to delay the approval of PRTC’s franchise agreement; and (4) the fact that OneLink “continued to file and prosecute numerous unsuccessful motions and petitions, including a motion to stay the grant of PRTC’s application and approval of its franchise agreement” between February 1, 2012 and April 4, 2012, to which, according to PRTC, triggered the TRB to rule on the motions and “found it necessary to clarify that ‘PRTC is authorized to operate its video services through-out the Island of Puerto Rico.’ ” Id. at 5-7. Turning to OneLink’s argument that Parker nullifies the “sham exception” under Noerr, PRTC rebuts that this is “a misreading of the law” as previously discussed by one Pennsylvania federal court. Id. at 13-14 (citing In re Wellbutrin XL Antitrust Litig., No. 08-2431, 2012 WL 1657734, at *28-30 (E.D.Pa. May 11, 2012)). Furthermore, PRTC claims there is a difference between “process” and “outcome”; that is, “ ‘Noerr encompasses situations in which persons use the governmental process — as opposed to the outcome of that process — as an anticompetitive weapon.’ ” Id. at 14 (quoting Omni, 499 U.S. at 380, 111 S.Ct. 1344) (emphasis in Omni original). It says “process” encompasses “delays caused by courts issuing stays while considering baseless lawsuits and appeals” and “delays caused by regulatory agencies taking time to consider and respond to sham petitions before ruling.” Id. at 16-17 (citing an array of caselaw). Thus, PRTC argues, because its alleged injury was not caused by the outcome of any TRB decision, Parker does not apply. Id. at 15. In addition, it says that OneLink misreads the First Circuit decision in Dav-ric Maine; OneLink maintains that Davric Maine does not say that resolution of a matter constitutes state action under Parker; rather, PRTC argues the First Circuit found the defendant in that case met the requirements for Noerr immunity. Id. Next, PRTC says that for Parker to apply, [w]here the challenged restraint on competition flows from an action by an entity other than the state legislature or the state’s highest court acting in a legislative capacity, then “the challenged restraint must be one clearly articulated and affirmatively expressed as state policy; [and] the policy must be actively supervised by the State itself.” Id. at 18 (quoting Cal. Retail Liquor Dealers Ass’n v. Midcal Aluminum, 445 U.S. 97, 105, 100 S.Ct. 937, 68 L.Ed.2d 233 (1980)) (emphasis in PRTC’s original). According to PRTC, neither prong articulated under Midcal is satisfied by OneLink here. Id. at 18-19. Addressing OneLink’s claim that PRTC has not shown causation, PRTC states that its burden “requires only that it show that OneLink’s conduct was a material or substantial cause of its injury.” Id. at 20 (citing Sullivan, 34 F.3d at 1103). Furthermore, it says that caselaw supports that where “it was foreseeable that a court might stay a regulatory proceeding” based on the actions of a party such as OneLink, the causation link does not break. Id. at 20-21. Finally, PRTC argues that even if the Court accepts OneLink’s “flawed interpretation of Parker,” it would not fully resolve the case. Id. at 23-24. In its view, OneL-ink’s “illegal conduct” caused PRTC to expend over $3.2 million in legal costs to defend “baseless petitions, lawsuits and appeals, as well as additional costs in consultants, lawyers and management time to continue the elongated franchise approval process.” Id. PRTC says that “sham litigation” resulting in damages constitutes a valid antitrust injury, and it should be allowed to present such damages at a jury trial. Id. at 24 (citing CVD, Inc. v. Raytheon Co., 769 F.2d 842, 858 (1st Cir.1985)). C. Defendant’s Reply In response to PRTC’s claim that Judge Gelpi already resolved this issue in his previous orders denying OneLink’s motion to dismiss, OneLink counters that while “PRTC was able to preserve its antitrust suit by alleging that OneLink’s litigation conduct caused TRB proceedings to drag on for nearly four years,” now that discovery has concluded and the factual record has become more fully developed, “PRTC has no evidence to support that allegation; the facts indisputably show that OneLink’s conduct did not cause any of the alleged delays.” Def.’s Reply at 1 (emphasis in original). Although Judge Gelpi agreed with PRTC that “its Complaint raised ‘sufficient factual allegations that Defendant’s conduct ... delayed Plaintiffs entry,’ ” OneLink asserts that “rejection of an argument at the motion-to-dismiss stage based on allegations assumed to be true does not foreclose accepting it at the summary judgment stage based on fully-developed facts.” Id. at 2 (quoting P.R. Tel. Co. v. San Juan Cable, LLC, 885 F.Supp.2d 534, 538 (D.P.R.2012); citing Wright & Miller § 2713; Perez-Ruiz v. Crespo-Guillen, 25 F.3d 40, 42 (1st Cir.1994)) (emphasis in OneLink’s original). Addressing PRTC’s argument that court-ordered stays are not final outcomes of successful suits, but rather, constitute “process,” OneLink similarly accuses PRTC of “misunderstanding ... the law.” Id. at 3. Reiterating its formulation of the “two distinct principles” from Noerr contained in its motion, OneLink argues that judicial stays fall within the first category developed by Noerr — harms resulting from valid governmental action—and therefore, is entitled to absolute immunity. Id. It also notes its view that Noerr does not distinguish between governmental acts that are final or interim; instead, it only distinguishes between governmental acts and private acts. Id. Furthermore, acknowledging that delay caused by a court or agency taking time to resolve the matter is not caused by state action because it is inaction, OneLink argues the situation here is different; “judicial stays are affirmative governmental acts. When agency action is stayed by court order, it is that order that causes delay, not the mere filing of the suit.” Id. at 5-6 (citing Knology, Inc. v. Insight Commc’ns Co., 393 F.3d 656 (6th Cir.2004)) (emphasis in original). In response to PRTC’s argument that Parker does not apply unless the action is taken by legislative or executive officers or by courts acting in a legislative role, OneL-ink says this is “facially wrong.” Id. at 6. Citing Davric Maine Corp., 216 F.3d at 146-48, OneLink argues that “the First Circuit held the sham exception irrelevant where courts found liability in suits brought by the defendant.” Def.’s Reply at 6 (emphasis in original). In sum then, OneLink says, judicial action translates to “state action.” Id. at 7. Moreover, regarding MidcaVs requirement of a state policy subject to state supervision, OneLink asserts that Midcal is inapposite to “petitioning immunity” because that case involved harm caused by private actors purportedly acting as state agents, whereas here, says OneLink, the alleged harm is “caused by state actors purportedly acting at private parties’ behest, and the private petitioners are therefore immune regardless of how the state action is characterized.” Id. at 7-8 (emphasis in original). Regarding PRTC’s claim that a ruling in favor of OneLink would not resolve the case and it would still be entitled to its fees and costs, OneLink asserts that “absent any liability for allegedly delaying PRTC’s market entry, PRTC’s claim for legal fees fails; such costs alone neither threatened nor actually harmed competition.” Id. at 1 (emphasis in original). In other words, OneLink argues that these fees and costs, “standing alone, could not support an antitrust claim, because PRTC has never alleged independent injury to competition in any relevant market based merely on those costs.” Id. at 12. In OneL-ink’s view, PRTC has not produced any evidence to support an argument “that it suffered antitrust injury solely by being forced to incur legal fees because such a claim here would be absurd.” Id. at 13. Although OneLink concedes that legal costs could cause antitrust injury if such costs left a “cash-strapped competitor unable to reduce its prices,” it argues that PRTC is far from “cash-strapped” and was not authorized to operate its video business during the relevant period because its franchise agreement was not yet approved, and therefore, there were no prices to reduce. Id. at 13-14. Finally, OneLink says it is entitled at the very least to partial summary judgment, and “granting even that limited relief would substantially serve the values of judicial economy and efficiency here.” Id. at 14. It also suggests the Court evaluate six time periods, two of which should be analyzed under Noerr and Allied Tube, and the remaining periods should be analyzed “on whether there exists a genuine factual dispute regarding whether OneL-ink’s allegedly ‘sham’ conduct delayed the TRB proceedings —” Id. at 14-15. OneLink suggests the Court examine each time period, and then grant summary judgment in its favor for all periods in which it concludes that the evidence is insufficient to hold OneLink liable. Id. at 15. D. Plaintiffs Surreply PRTC reiterates its position that OneL-ink’s motion should be denied under the law of the case doctrine, noting that “OneLink does not identify any new evidence or facts that have been discovered since its Rule 12 motion that merit revisiting the Court’s prior rulings on antitrust injury.” Pl.’s Surreply at 1. It also provides additional quotations from the Wright & Miller treatise to support its argument that OneLink is making the “same antitrust injury arguments [based on] the same factual record presented at the Rule 12 stage.” Id. at 3. PRTC further asserts that this Court would be the “first ever” to hold “that delay caused by procedural rulings during sham litigation is actually an ‘outcome’ and protected state action under Parker v. Brown.” Id. In addition, it argues that “OneLink’s claim that all judicial action is ‘obviously’ state action ignores the Supreme Court’s consistent precedent that judicial action is ‘exempt from Sherman Act liability as state action’ only when ‘a state supreeme court, act[s] legislatively rather than judicially!.]” Id. at 4 (quoting Hoover v. Ronwin, 466 U.S. 558, 568, 104 S.Ct. 1989, 80 L.Ed.2d 590 (1984)) (emphasis in PRTC’s original). In sum, PRTC views OneLink’s argument as “woven from whole cloth and unsupported by any law.” Id. at 5. Finally, perhaps anticipating that the Court would not consider the legal memo-randa and orders written by the TRB, PRTC suggests that the Court take judicial notice of these writings, as they “are the best evidence PRTC can present at this stage regarding the TRB’s repeated position that OneLink’s pattern of petitioning was intended to” delay PRTC’s entrance into the market as a competitor. Id. at 7 (citing an array of easelaw). III. LEGAL PRINCIPLES ON SUMMARY JUDGMENT Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A fact is “material” if it “has the potential to change the outcome of the suit.” Tropigas de Puerto Rico, Inc. v. Certain Underwriters at Lloyd’s of London, 637 F.3d 53, 56 (1st Cir.2011) (quoting Borges ex rel. S.M.B.W. v. Serrano-Isern, 605 F.3d 1, 5 (1st Cir.2010)). A dispute is “genuine” if “a reasonable jury could resolve the point in favor of the nonmoving party.” Id. (quoting McCarthy v. Nw. Airlines, Inc., 56 F.3d 313, 315 (1st Cir.1995)). Once this evidence is supplied by the moving party, the nonmovant must “produce ‘specific facts, in suitable evidentiary form, to ... establish the presence of a trialworthy issue.’ ” Triangle Trading Co., Inc. v. Robroy Indus., Inc., 200 F.3d 1, 2 (1st Cir.1999) (quoting Morris v. Gov’t Dev. Bank of Puerto Rico, 27 F.3d 746, 748 (1st Cir.1994)). In other words, the non-moving party must “present ‘enough competent evidence’ to enable a factfinder to decide in its favor on the disputed claims.” Carroll v. Xerox Corp., 294 F.3d 231, 237 (1st Cir.2002) (quoting Goldman v. First Nat’l Bank of Boston, 985 F.2d 1113, 1116 (1st Cir.1993)). The Court then “views the facts and draws all reasonable inferences in favor of the nonmoving party.” Ophthalmic Surgeons, Ltd. v. Paychex, Inc., 632 F.3d 31, 35 (1st Cir.2011). However, the Court “afford[s] no evidentiary weight to ‘conclu-sory allegations, empty rhetoric, unsupported speculation, or evidence which, in the aggregate, is less than significantly probative.’ ” Tropigas, 637 F.3d at 56 (quoting Bogan v. City of Boston, 267 F.3d 24, 27 (1st Cir.2001)); accord Sutliffe v. Epping Sch. Dist., 584 F.3d 314, 325 (1st Cir.2009). IY. DISCUSSION A. Law of the Case Doctrine PRTC asks the Court to deny OneLink’s motion for summary judgment based on the law of the case doctrine. Specifically, PRTC says that Judge Gelpi already ruled against OneLink on two occasions regarding these same arguments, and there is no need to interrupt sound rulings. In contrast, OneLink argues that the more fully-developed record demonstrates that OneL-ink’s conduct did not cause any delays in PRTC’s ability to enter the market, and also asserts as a general proposition that a court that rejects arguments at the motion to dismiss stage does not foreclose its ability to accept those same arguments at the summary judgment stage by reviewing the more fully-developed record. Although viewed as an “amorphous concept” by the Supreme Court, “‘[a]s most commonly defined, the doctrine posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.’ ” Pepper v. United States, 562 U.S. 476, 131 S.Ct. 1229, 1250, 179 L.Ed.2d 196 (2011) (quoting Arizona v. California, 460 U.S. 605, 618, 103 S.Ct. 1382, 75 L.Ed.2d 318 (1983)). At the same time, “[t]his doctrine ‘directs a court’s discretion, it does not limit the tribunal’s power.’ ” Id. (quoting Arizona, 460 U.S. at 618, 103 S.Ct. 1382). “This rule of practice promotes the finality and efficiency of the judicial process by protecting against the agitation of settled issues.” Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 816, 108 S.Ct. 2166, 100 L.Ed.2d 811 (1988) (internal citations and quotation marks omitted). In addition, while the doctrine “is limited to those issues previously decided, it encompasses all things decided by necessary implication as well as those decided explicitly.” Guzman v. Villoldo, 245 F.Supp.2d 388, 392 (D.P.R.2003) (internal citations and quotation marks omitted). Furthermore, although completely within the discretion of the Court, “as a rule courts should be loathe to [revisit prior decisions] in the absence of extraordinary circumstances such as where the initial decision was ‘clearly erroneous and would work a manifest injustice.’” Christianson, 486 U.S. at 817, 108 S.Ct. 2166 (quoting Arizona, 460 U.S. at 618 n. 8, 103 S.Ct. 1382). Even so, orders on motions to dismiss are interlocutory orders, and the First Circuit noted in Perez-Ruiz that “denials of motions to dismiss, remain open to trial court reconsideration, and do not constitute the law of the case.” 25 F.3d at 42; see also Commerce Oil Refining Corp. v. Miner, 303 F.2d 125, 128 (1st Cir.1962) (“A ruling denying a motion to dismiss is not the law of the case, and is not final even in the district court”). That said, one of the leading treatises on civil procedure practice instructs: The ruling on a motion to dismiss for failure to state a claim for relief is addressed solely to the sufficiency of the complaint and does not prevent summary judgment from subsequently being granted based on material outside the complaint. On the other hand, a Rule 56 motion may not be made on the same grounds and with the same showing that led to the denial of a previous motion to dismiss. Whight & Miller § 2713; see also Conley v. United States, 323 F.3d 7, 13 (1st Cir.2003) (explaining that one ground for deviating from the law of the case is “where there is new evidence on the question at issue”); PDK Labs Inc. v. Ashcroft, 338 F.Supp.2d 1, 7 (D.D.C.2004) (“Even if different language is used in a summary judgment motion than in a previous motion to dismiss, if the same legal theory supports both motions, the disposition of the motion to dismiss may serve as the law of the case and on these grounds, a court may similarly dispose of a motion for summary judgment”). PRTC relies heavily on the latter sentence of this Wright & Miller section, contending that “OneLink does not identify any new evidence or facts that have been discovered since its Rule 12 motion that merit revisiting the Court’s prior rulings on antitrust injury.” Pl.’s Surreply at 1. With these guideposts in mind, particularly First Circuit authority, the Court summarizes the arguments and evidence that supported OneLink’s motion to dismiss and Judge Gelpi’s subsequent denial of the motion, and compares the evidence and arguments OneLink has brought forward on its pending motion for summary judgment with that used to support its motion to dismiss. 1. OneLink’s Motion to Dismiss In its motion to dismiss, OneLink argued for dismissal on two bases: (1) that it was immune under the Noerr-Pennington doctrine; and (2) that PRTC did not properly plead an antitrust injury. Mot. to Dismiss at i. To support its positions, OneL-ink cited PRTC’s Amended Complaint, which highlighted the proceedings that PRTC claimed demonstrated a “pattern of baseless litigation and endless appeals.” Id. at 4-6 (citing Am. Compl. ¶¶ 35-42, 44-46, 57-58). Regarding immunity, it highlighted what the Amended Complaint did not allege, namely, “[i]t does not identify a single filing made by OneLink as not being reasonably calculated to elicit a favorable outcome.” Id. at 6. Based on the allegations in the Amended Complaint, OneLink argued that it was protected under the Noeir-Pennington doctrine, especially because, in its view, “[t]he Amended Complaint pleads nothing more than classic Noerr-Penning-ton activity: the assertion of rights, claims, positions and defenses, in both administrative proceedings and in litigation in the courts.” Id. at 10. In addition, OneLink contended that the “sham” exception to Noerr-Pennington immunity had not been properly pled. Id. at 11, 14-16. Finally, it observed there was a split of authority as to whether a “pattern” of repetitive litigation could be deemed “objectively baseless” to invoke the “sham” exception, and it argued to the Court that this line of cases should be rejected or, alternatively, even if the Court were to adopt the “pattern” line of cases, the Amended Complaint still did not plead sufficient facts to establish a “pattern” of litigation. Id. at 16. Specifically, it argued that the Amended Complaint did not allege a “sufficient volume of litigation activity.” Id. at 20. Regarding its view that PRTC did not properly plead antitrust injury, OneLink asserted that PRTC needed to “show that its injuries are not from the outcome of the petitioning, but from the process of petitioning itself.” Id. at 23 (emphasis in original). OneLink acknowledged that the Amended Complaint alleged that “OneL-ink used the legal process to ‘impose cost and delay’ on PRTC’s entry into the market,” but argued that the allegation was conclusory. Id. (quoting Am. Compl. ¶ 31). It also cited paragraphs 35, 38, 41, 44, 57, and 58 of the Amended Complaint in support. Id. at 23-24. In conclusion, OneLink claimed that PRTC only alleged injury “from the outcome of the petitioning process, rather than from the incidents of that process itself.” Id. at 24 (emphasis in original). 2. Judge Gelpi’s Orders In rejecting OneLink’s contention that it was immune under the Noerr-Pennington doctrine, Judge Gelpi held that PRTC “alleged a sufficient amount of proceedings to be deemed a pattern. Defendant either initiated or intervened, in suits against Plaintiff or opposed Plaintiff at various administrative hearings.” First Opinion and Order at 4 (citing Am. Compl. ¶¶ 35-58). Although he chose not to restate each hearing contained in PRTC’s Amended Complaint, Judge Gelpi explicitly noted “January 13, February 10, April 2, June 15, and November 4 of 2009 along with all the various appeals filed regarding these actions as sufficient to meet the pattern requirement.” Id. Judge Gelpi also observed that OneLink admitted “opposing Plaintiff in seven proceedings, but makes no mention of the amount of appeals sought in each case. The court finds this activity sufficient to meet the standard for a pattern of litigation ....” Id. at 5. As regards OneLink’s claim that PRTC did not properly plead an antitrust injury, Judge Gelpi rejected that argument as well, finding that PRTC’s “complaint contains sufficient factual allegations that Defendant’s conduct not only delayed Plaintiffs entry into the market, but also protected Defendant’s market share.” Id. Furthermore, he noted “the complaint alleges Plaintiff ] [was] injured due to the process of these proceedings, not simply the outcome.” Id. OneLink then filed a motion for reconsideration, which Judge Gelpi denied. Second Opinion and Order at 6. 3. Evidence and Arguments Presented by OneLink in its Pending Motion Even assuming that “a Rule 56 motion may not be made on the same grounds and with the same showing that led to the denial of a previous motion to dismiss,” WRIght & Miller § 2713, PRTC’s law of the case argument fails. Essentially, OneL-ink is now arguing that it is entitled to summary judgment even if the “sham” exception to Noerr-Pennington applies, because the alleged delays were caused by government acts and private parties cannot be held liable for those acts under Parker. See Def.’s Mot. at 2. Judge Gelpi never ruled on this issue. In addition, OneLink argues that it is immune under Noerr-Pennington now that discovery has been completed. Judge Gelpi was not presented with the full evidentiary record that the Court now has in front of it, and he limited his ruling to a finding of a sufficiently pleaded “pattern of litigation.” Similarly, OneLink is currently arguing that it is entitled to summary judgment even if PRTC can show cognizable antitrust injury because it is only traceable to state action. See id. at 17. Judge Gelpi never ruled on this argument either. As the law of the case doctrine “is limited to those issues previously decided,” PRTC’s law of the case argument would not succeed even if it applied in the First Circuit. Guzman, 245 F.Supp.2d at 392. It does not. In the First Circuit, “interlocutory orders, including denials of motions to dismiss, remain open to trial court reconsideration, and do not constitute the law of the case.” Perez-Ruiz, 25 F.3d at 42; Commerce Oil Refining Corp., 303 F.2d at 128 (“a ruling denying a motion to dismiss is not the law of the case, and is not final even in the district court”). The Court concludes that the law of the case doctrine is inapplicable to OneLink’s motion for summary judgment. B. Waiver Under Federal Rule of Civil Procedure 8(c) The Court turns to PRTC’s request that this “new” defense be deemed waived. PRTC argues that OneLink never raised the defense in its Answer, never added it by amendment in accordance with Rule 15(a), and never indicated during discovery that it planned on raising it; instead, of the nine affirmative defenses OneLink did raise in its Answer, it only raised Noerr-Pennington immunity and protection under the First Amendment, which, according to PRTC, does not implicate the state action doctrine. Pl.’s Opp’n at 2, 12. “In responding to a pleading, a party must affirmatively state any avoidance or affirmative defense.” Fed, R. Civ. P. 8(c)(1). A party has the right to “amend its pleading” either as a matter of course, or “with the opposing party’s written consent or the court’s leave.” Fed. R. Civ. P. 15(a)(1)-(2). Courts in this district have previously held that state action immunity is “in the nature of an affirmative defense.” Ticket Center, Inc. v. Banco Popular de P.R., 441 F.Supp.2d 354, 357 (D.P.R.2006) (explaining that “state action immunity is in the nature of an affirmative defense”); Ports Auth. of P.R. v. Compania Panamena de Aviacion (Copa), S.A., 77 F.Supp.2d 227, 232 (D.P.R.1999) (“State action immunity is in the nature of an affirmative defense; the party claiming immunity has the burden of proof’). As a general rule, “failure to plead an affirmative defense results in a waiver of the defense and the exclusion of all evidence relevant to it.” Conjugal P’ship v. Conjugal P’ship, 22 F.3d 391, 400 (1st Cir.1994). Such a penalty is intended to encourage disclosure by the defendant so that the opposing party receives “notice of the defense and a chance to develop evidence and offer arguments to controvert the defense.” Wolf v. Reliance Standard Life Ins. Co., 71 F.3d 444, 449 (1st Cir.1995). At the same time, some exceptions exist, including “where (i) the defendant asserts it without undue delay and the plaintiff is not unfairly prejudiced by any delay, ... or (ii) the circumstances necessary to establish entitlement to the affirmative defense did not obtain at the time the answer was filed.” Davignon v. Clemmey, 322 F.3d 1, 15 (1st Cir.2003); see also Conjugal P’ship, 22 F.3d at 400 (explaining “it is settled that ‘[w]hen there is no prejudice and when fairness dictates, the strictures of [the raise or waive] rule may be relaxed’ ”) (quoting Jakobsen v. Mass. Port Auth., 520 F.2d 810, 813 (1st Cir.1975)). Nearly one month after Judge Gelpi denied OneLink’s motion for reconsideration, OneLink filed its Answer. Answer. As PRTC correctly points out, OneLink provided nine affirmative defenses. Id. at 14-16. PRTC is also correct that OneLink asserted the affirmative defenses of, among others, Noerr-Pennington immunity and protection under the First Amendment. Id. ¶¶ 98-99. In addition, OneLink’s “Theory of the Case” and “Applicable Law” in the Joint Initial Scheduling Memorandum makes no mention of Parker immunity or state action immunity, and only references the First Amendment and Noerr-Pennington. Joint Initial Scheduling Mem. at 1-3 (ECF No. 49). Nevertheless, the Court 'will not invoke the doctrine of waiver in this instance for several reasons. First, it is not entirely clear that state action immunity is recognized as an affirmative defense in the First Circuit, which if not asserted is necessarily waived. The context of the earlier caselaw is that state action immunity is in the “nature of an affirmative defense” in which the burden of proof is on the party claiming the immunity. Ticket Ctr., 441 F.Supp.2d at 357; Puerto Rico Ports Auth. v. Compania Panamena de Aviacion, 77 F.Supp.2d 227, 232 (P.R.D.1999) (citing F.T.C. v. Ticor Title Ins. Co., 504 U.S. 621, 112 S.Ct. 2169, 119 L.Ed.2d 410 (1992)). Second, even if state action immunity is an affirmative defense, the Court would not invoke the doctrine of waiver. The Court views OneLink’s defense of Parker immunity as a motion seeking leave to amend the pleadings. See Wolf, 71 F.3d at 449. The Court has discretion regarding whether to grant a motion for leave. Id. In the Court’s view, OneLink raised Parker immunity without undue delay and without apparent prejudice to PRTC. This is not a case where an entirely new defense was raised days before trial. See, e.g., id. at 450 (affirming the denial of leave to amend when an entirely new affirmative defense was raised “five days before trial, which would have forced Wolf to conduct additional discovery, research, and preparation on the ERISA-related issues”). Instead, Parker immunity was raised during the course of summary judgment, and no additional discovery appears necessary. Furthermore, PRTC has demonstrated that it was not prejudiced by the Parker immunity defense as it has adequately submitted a detailed and thoughtful opposition and surreply for the Court’s consideration. Finally, as fairness dictates allowing OneL-ink to raise Parker immunity here, the doctrine of waiver is relaxed. Conjugal P’ship, 22 F.3d at 400. The Court concludes that the doctrine of waiver need not be invoked in this instance, and considers OneLink’s argument that it is immune from antitrust liability under Parker and Noerr-Pennington. C. Antitrust Immunity: Parker and Noerr-Pennington 1. Parker v. Brown and its Progeny In Parker, the Supreme Court held that the Sherman Act was not intended “to restrain a state or its officers or agents from activities directed by its legislature.” 317 U.S. at 350-51, 63 S.Ct. 307. This is because the Act “makes no mention of the state as such, and gives no hint that it was intended to restrain state action or official action directed by a state.” Id. at 351, 63 S.Ct. 307. Instead, it applies to..private parties, such as “persons and corporations,” which are explicitly listed under the statute. Id. In other words, the Sherman Act does not prohibit “an act of government.” Id. at 352, 63 S.Ct. 307; see also Ticket Center, 441 F.Supp.2d at 356 (“Although the antitrust laws aim at competitive markets, the Parker Court recognized that governments often restrict competition for public purposes. The actions of state governments were deemed not to fall within the constraints of antitrust laws”). Following Parker, immunity was extended to municipalities, private parties, and state agencies regulating private parties’ conduct. S. Motor Carriers Rate Conference, Inc. v. United States, 471 U.S. 48, 56-57, 105 S.Ct. 1721, 85 L.Ed.2d 36 (1985) (“Although Parker involved an action against a state official, the Court’s reasoning extends to suits against private parties .... [A]nd to state agencies or officials regulating the conduct of private parties”); Tri-State Rubbish, Inc. v. Waste Mgmt., Inc., 998 F.2d 1073, 1076 (1st Cir.1993) (“After a certain amount of wobbling, it has become settled that municipalities enjoy the protection of the Parker doctrine if, but only if, the conduct in question is of a kind authorized or directed by state law”); Mass. Furniture & Piano Movers v. FTC, 773 F.2d 391, 394 (1st Cir.1985). However, the key to a successful “antitrust action should depend upon the nature of the activity challenged, rather than on the identity of the defendant.” S. Motor Carriers Rate Conference, 471 U.S. at 58-59, 105 S.Ct. 1721. In addition, for Parker immunity to extend “to private parties, and to state agencies or officials regulating the conduct of private parties,” the Supreme Court has articulated a two-prong test. Id. at 57, 105 S.Ct. 1721. First, the alleged restraint must be “ ‘one clearly articulated and affirmatively expressed as state policy.’” Midcal, 445 U.S. at 105, 100 S.Ct. 937 (quoting City of Lafayette v. La. Power & Light Co., 435 U.S. 389, 410, 98 S.Ct. 1123, 55 L.Ed.2d 364 (1978)). A “clearly articulated policy” is one that has been authorized by a state legislature or state supreme court. S. Motor Carriers Rate Conference, 471 U.S. at 63, 105 S.Ct. 1721. Second, “the policy must be ‘actively supervised’ by the State itself.” Midcal, 445 U.S. at 105, 100 S.Ct. 937 (quoting La. Power & Light Co., 435 U.S. at 410, 98 S.Ct. 1123). “This supervision requirement prevents the State from frustrating the national policy in favor of competition by casting a ‘gauzy cloak of state involvement’ over what is essentially private anticom-petitive conduct.” S. Motor Carriers Rate Conference, 471 U.S. at 57, 105 S.Ct. 1721 (quoting Midcal, 445 U.S. at 106, 100 S.Ct. 937). For example, under the facts of Midcal, the Supreme Court affirmed issuance of a state-court injunction preventing officials from enforcing a law that required wine producers and distributors to create resale price schedules. Midcal, 445 U.S. at 100-02, 100 S.Ct. 937. In coming to its ruling, the Midcal Court explained that the first prong of the test was satisfied because “[t]he legislative policy is forthrightly stated and clear in its purpose to permit resale price maintenance.” Id. at 105, 100 S.Ct. 937. However, the second prong of the test had not been met because: [t]he State simply authorizes price setting and enforces the prices established by private parties. The State neither establishes prices nor reviews the reasonableness of the price schedules; nor does it regulate the terms of fair trade contracts. The State does not monitor market conditions or engage in any “pointed reexamination” of the program. The national policy in favor of competition cannot be thwarted by casting such a gauzy cloak of state involvement over what is essentially a private price-fixing arrangement. As Parker teaches, “a state does not give immunity fo those who violate the Sherman Act by authorizing them to violate it, or by declaring that their action is lawful .... ” Id. at 105-06 (quoting Parker, 317 U.S. at 351, 63 S.Ct. 307). Since Midcal, numerous courts have discussed and applied the two-prong test to determine whether Parker immunity applies. See, e.g., S. Motor Carriers Rate Conference, 471 U.S. at 64-67, 105 S.Ct. 1721 (concluding that intrastate rate-making activity of private motor carrier conference was entitled to Parker immunity because the state statutes explicitly permitted collective rate-making by common carriers, and these states conceded the “actively supervised” prong); Mass. Furniture & Piano Movers Ass’n, 773 F.2d at 394-97 (discussing Midcal in detail and concluding that a furniture and piano movers association met its burden in establishing the first prong for Parker immunity because the state statute “clearly establishes the state’s intent to countenance collective rate setting among motor carriers,” and remanding for findings as to the second prong); Cent. Telecomms., Inc. v. TCI Cablevision, Inc., 800 F.2d 711, 725 (8th Cir.1986) (although deeming the argument waived, explaining its skepticism that cable company satisfied the Midcal test where there was no “clearly and affirmatively expressed policy of the Missouri legislature directing the City to displace competition”); Arroyo-Melecio v. Puerto Rican Am. Ins. Co., 398 F.3d 56, 71-72 (1st Cir.2005) (“A state’s general authority over or passive acceptance of a regulated firm’s position does not confer Parker immunity”). 2. “Sham” Petitioning Exception under Noerr-Pennington In Noerr, the Supreme Court explained that “no violation of the [Sherman] Act can be predicated upon mere attempts to influence the passage or enforcement of laws.” 365 U.S. at 135, 81 S.Ct. 523. This is because “valid governmental action” does not fall within the purview of the Sherman Act, and “under our form of government the question whether a law of that kind should pass, or if passed be enforced, is the responsibility of the appropriate legislative or executive branch of government” as long as it is constitutional. Id. at 136, 81 S.Ct. 523. Furthermore, the Noerr Court declared: “We think it equally clear that the Sherman Act does not prohibit two or more persons from associating together in an attempt to persuade the legislature or the executive to take particular action with respect to a law that would produce a restraint or a monopoly.” Id.) see also United Mine Workers of Am. v. Pennington, 381 U.S. 657, 670, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965) (“Noerr shields from the Sherman Act a concerted effort to influence public officials regardless of intent or purpose”). In 1972, the Supreme Court extended the Noerr-Pennington analysis to the judicial branch and state administrative agencies. California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 510, 92 S.Ct. 609, 30 L.Ed.2d 642 (1972). The scope of Noerr-Pennington immunity “depends ... on the source, context, and nature of the anticompetitive restraint at issue.” Allied Tube, 486 U.S. at 499, 108 S.Ct. 1931. In the context of legislative or political activity, Noerr-Penning-ton sweeps broadly; however, “[misrepresentations, condoned in the political arena, are not immunized when used in the adjudicatory process.” California Motor, 404 U.S. at 513, 92 S.Ct. 609. Noerr-Pennington immunity is not absolute. The Noerr Court cautioned that “[t]here may be situations in which a publicity campaign, ostensibly directed toward influencing governmental action, is a mere sham to cover what is actually nothing more than an attempt to interfere directly with the business relationships of a competitor and the application of the Sherman Act would be justified.” Noerr, 365 U.S. at 144, 81 S.Ct. 523; see also Allied Tube, 486 U.S. at 500 n. 4, 108 S.Ct. 1931 (Regarding sham petitioning as “private action that is not genuinely aimed at procuring favorable government action,” as opposed to “a valid effort to influence government action”). In his earlier opinion in this case, Judge Gelpi described a “sham