District Court denies Noerr-Pennington Doctrine, but Allows Litigation Privilege

In Cassaday v. Union Adjustment Company, Inc. 2008 WL 4773976 (N.D.Cal. 2008), Judge Illston followed the decision in Sial v. Unifund CCR Partners, 2008 WL 4079281, *3-5 (S.D.Cal. Aug.28, 2008) by refusing to apply the Noerr-Pennington doctrine to bar FDCPA claims.  However, Judge Illston did not follow Sial’s holding that the litigation privilege does not provide a defense to FDCPA claims.  Judge Illston explained:

Defendant contends that plaintiff’s claims are barred by the Noerr-Pennington doctrine and the California litigation privilege. The Court is unpersuaded that the Noerr-Pennington doctrine bars actions under the FDCPA. Defendant has not cited any authority within the Ninth Circuit applying this doctrine to FDCPA claims. Instead, the Court agrees with the reasoning of Sial v. Unifund CCR Partners, 2008 WL 4079281, *3-5 (S.D.Cal. Aug.28, 2008), in which the court held that the doctrine did not bar an FDCPA claim. The Sial court relied on the Supreme Court’s decision in Heinz v. Jenkins, 514 U.S. 291, 115 S.Ct. 1489, 131 L.Ed.2d 395 (1995), which held that liti-gating attorneys were “debt collectors” under the FDCPA. Although Heinz did not directly address this question, the holding of Heinz strongly suggests that the Noerr-Pennington doctrine does not apply to FDCPA actions.  ¶   With regard to the California litigation privilege, the Court reaches a different conclusion based upon the facts of this case. The Court notes that the Rosenthal Act explicitly excludes attorneys from the definition of “debt collectors.”  See Cal. Civ.Code § 1788.2(c). The Court also notes that there is no California authority on the interplay between the Rosenthal Act and the California litigation privilege, and federal district courts are split on this issue. However, courts addressing the question have made findings based upon the specific alleged violations in each case, and have drawn distinctions between harassing conduct and communications occurring prior to the debt col-lection action, and those occurring within judicial proceedings. See generally Lopez Reyes v. Kenosian & Miele, LLP, 525 F.Supp.2d 1158, 1163-64 (N.D.Cal.2007) (discussing cases).