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United States Court of Appeals, Third Circuit.

HELICOPTER HELMET, LLC, a Delaware Limited Liability Company; Government Surplus Sales Inc., d/b/a Government Sales, Inc., Appellants v. GENTEX CORPORATION, a Delaware Corporation; Flight Suits, a California Corporation, d/b/a Gibson & Barnes; James T. Wegge, an individual

No. 18-2208

Decided: July 29, 2019

Before: McKEE, PORTER, and ROTH, Circuit Judges. Jesse L. Noa, Esq., John A. Sensing, Esq., Potter Anderson & Corroon, Wilmington, DE, Joseph F. Orso, III, Esq., Rudinski Orso & Lynch, Williamsport, PA, for Plaintiffs - Appellants Daniel T. Brier, Esq., Donna A. Walsh, Esq., Myers Brier & Kelly, Scranton, PA, Colm F. Connolly, Esq., Morgan Lewis & Bockius, Wilmington, DE, R. Brendan Fee, Esq., Steven A. Reed, Esq., Morgan Lewis & Bockius, Philadelphia, PA, Noah J. Kaufman, Esq., Morgan Lewis & Bockius, Boston, MA, Michael E. Kenneally, Esq., Morgan Lewis & Bockius, Washington, DC, for Defendant - Appellee Gentex Corp. Joseph J. Bellew, Esq., White & Williams, Wilmington, DE, Robert W. Hayes, Esq., Brian Kint, Esq., Abby L. Sacunas, Esq., Cozen O'Connor, Philadelphia, PA, for Defendants - Appellees Flight Suits, James T. Wegge


Helicopter Helmet, LLC appeals the district court's grant of a motion to dismiss filed by Gentex Corporation, Gibson & Barnes, and James T. Wegge. In a thorough and well-reasoned opinion, Judge Brann explained that Helicopter Helmet had failed to state a claim for which relief could be granted for alleged violations of federal antitrust laws, the Lanham Act, and Delaware's Deception Trade Practices Act, along with common-law claims for unjust enrichment and defamation.1 For the reasons set forth in that opinion as briefly discussed below, we will affirm the order dismissing this complaint.


Helicopter claims that because the helicopter helmet manufacturing market consists of only six competitors, Gentex and G&B's actions violated federal antitrust laws. However, Helicopter has not established antitrust standing or an antitrust violation.

Helicopter argues that because there are only six manufacturers of the helicopter helmets in question, any damage inflicted on one manufacturer by Gentex and G&B's actions effects the entire market. This is not an argument for a particularized harm and is not sufficient to establish antitrust injury.3 The Supreme Court has rejected the proposition that a company may establish an antitrust injury by averring that absent the defendant's conduct it would have performed better.4 “There must be a causal link between the alleged injury and an antitrust violation's anticompetitive effects.”5 But here, as in Philadelphia Taxi Association, Inc v. Uber, the Appellants “fail to aver an antitrust injury, such as a negative impact on consumers or to competition in general, let alone any link between this impact and the harms Appellants have suffered.”6

To establish a violation of the Sherman Act, Helicopter must prove “(1) that the defendant has engaged in predatory or anticompetitive conduct with (2) a specific intent to monopolize and (3) a dangerous probability of achieving monopoly power.”7 This test cannot be met here. Helicopter alleges that Gentex and G&B influenced government officials to publish false reports aimed at hindering them from competing in the market. Government officials removed those reports and cancelled the sole-source contract that had been awarded to G&B. Because Helicopter fails to state a particularized financial harm that can be traced back to G&B's actions, their claims fail even when viewed in the light most favorable to Helicopter.

Under the Noerr-Pennington doctrine, “antitrust liability cannot be predicated solely on petitioning to secure government action.”8 The district court correctly concluded that since Helicopter's antitrust claims are premised on Gentex's and G&B's alleged attempts to influence certain government agencies’ action, they necessarily fail.9

For the reasons clearly stated in the district court's opinion, Helicopter has failed to state claims for defamation,10 unjust enrichment,11 violation of the Lanham Act,12 of the Delaware Deceptive Trade Practices Act.13

Therefore, we will affirm the judgment of the district court.


1.   Helicopter Helmet, LLC v. Gentex Corp., No. 17-cv-00497, 2018 WL 2023489 (D. Del. 2018).

3.   See Eichorn v. AT&T Corp., 248 F.3d 131, 140 (3rd Cir. 2001) (collecting cases).

4.   See Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 488-89, 97 S.Ct. 690, 50 L.Ed.2d 701 (1977).

5.   Phila. Taxi Ass'n, Inc v. Uber Technologies, Inc., 886 F.3d 332, 343 (3d Cir. 2018).

6.   Id. at 344.

7.   Mylan Pharm. Inc. v. Warner Chilcott Pub. Ltd. Co., 838 F.3d 421, 433 (3d Cir. 2016) (internal citations omitted).

8.   Armstrong Surgical Center, Inc. v. Armstrong County Memorial Hosp., 185 F.3d 154, 158 (3d Cir. 1999).

9.   Helicopter, 2018 WL 2023489, at *6.

10.   Id. at *4.

11.   Id.

12.   Id. at *5-6.

13.   Id. at *5.

McKEE, Circuit Judge.

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