California Anti-SLAPP Project

Franchise Realty Interstate Corp.
v.
San Francisco Local Joint Executive Board of Culinary Workers

Cite as: 542 F.2d 1076


FRANCHISE REALTY INTERSTATE CORPORATION and McDonald's Systems of California, Inc., Plaintiffs-Appellants,
v.
SAN FRANCISCO LOCAL JOINT EXECUTIVE BOARD OF CULINARY WORKERS et al., Defendants-Appellees.

No. 73-2727.
United States Court of Appeals, Ninth Circuit.
Sept. 17, 1976.

Rehearing and Rehearing In Banc Denied Nov. 2, 1976.

COUNSEL:
Maxwell M. Blecher (argued), of Blecher, Collins & Hecker, Los Angeles, Cal., for plaintiffs-appellants.
John Thomas Bowen (argued), of Davis, Cowell & Bowe, San Francisco, Cal., Michael Rubenstein (argued), San Francisco, Cal., James T. Fousekis (argued) of Steinhart, Goldberg, Feigenbaum & Lader, San Francisco, Cal., for defendants- appellees.

Before BROWNING and DUNIWAY, Circuit Judges, and MARKEY,[FN*] Chief Judge, United States Court of Customs and Patent Appeals.

FN* Sitting by designation.
DUNIWAY, Circuit Judge:

Plaintiffs (McDonald's), two subsidiaries of McDonald's Corporation, appeal from a judgment dismissing their first amended complaint without leave to amend, and the action (Rule 12(b)(6), F.R.Civ.P.), and from an order denying their motion, made after the judgment, for leave to file a second amended complaint (Rules 15(a) and 60(b)(6), F.R.Civ.P.). We affirm.

In the first amended complaint, McDonald's alleged that the defendants, two associations of restaurant and hotel employers and a labor union, had combined and conspired, in violation of s 1 of the Sherman Act, 15 U.S.C. s 1, to oppose, repeatedly, baselessly and in bad faith, the granting of building permits by the San Francisco Board of Permit Appeals (Board) for the construction of McDonald's restaurants.

McDonald's first amended complaint alleges that in 1971 McDonald's, which operates two restaurants in San Francisco, applied for licenses for the operation of three more restaurants, that permits were granted by the San Francisco Department of Public Works, and that the defendants "persuaded" the San Francisco Board of Permit Appeals to overrule the issuance of the permits and to deny them.

It then continues:

17. The aforesaid combination and conspiracy has consisted of a continuing agreement and concert of action, the substantial terms of which have been and are:
(a) That each defendant would appear before the Board of Permit Appeals of the City and County of San Francisco and would oppose each and every permit granted to the Company by the San Francisco Department of Public Works;
(b) That each defendant would solicit the appearance before the Board of such of its members and others as it could secure to support its opposition to issuance of each such permit;
(c) That each defendant would threaten lack of political support to each Board member and other city officials who supported the Company.

18. The conduct described in paragraphs 16 and 17 herein was unlawful in that neither defendant was acting in good faith; instead the consistent, repeated and baseless opposition to the permits accorded the Company by the Department of Public Works was the product of a combination and conspiracy entered into with the explicit purpose of insulating restaurant operators in San Francisco from the competition of McDonald's restaurants and each such opposition was sham and frivolous in that by such opposition the defendants intended to and did no more than cover up a plan to foreclose the Company from free and unlimited access to the Department of Public Works and the Board of Permit Appeals of the City and County of San Francisco, and thereby interfere directly with the business activities and relationships of a competitor. Such opposition specifically undertook to injure and suppress the activities of a competitor who offered quality food at low prices in a family atmosphere.

19. Moreover, each defendant knew its activities to be unlawful and knew them to be a sham and frivolous in that each was well aware of the fact that the Company had intended to and did comply with all of the necessary code requirements, ordinances and regulations applicable to the conduct of its proposed restaurants and that the Board of Permit Appeals of the City and County of San Francisco had absolutely no authority, right, duty or responsibility to act as an economic board of review with the power to determine who and on what terms competition shall exist within the confines of San Francisco. Each defendant thus knew that by its plan of systematic, indiscriminate and wanton attack on the Company it was inducing, if not acting in concert with, the Board of Permit Appeals (other than its President), to subvert the constitutional function of that Board and to do no more than frustrate McDonald's restaurants as a competitive factor in the City and County of San Francisco.

Nowhere in the complaint does McDonald's tell us, specifically, how or why or even whether the defendants' alleged efforts to influence the Board have in any way impaired McDonald's ability fully to present its views to the Board. Nowhere is it alleged that McDonald's was prevented from applying for permits, or from having a hearing before the Board.

The mere reversal of the grant of the three applications, at the urging of the defendants, suggests no more than "that the plaintiffs and defendants met head-on before the Board and that plaintiffs lost," as the district court noted in its opinion. The complaint fails to adduce any specific facts to support the conclusory allegation that defendants' opposition before the Board was "sham" or "frivolous." This deficiency is hardly surprising, for we seriously doubt that any argument raised before the Board could be so characterized in view of the extremely broad standards governing the exercise of that body's discretion. Under section 3.651 of the Charter of the City and County of San Francisco, the Board would appear to have the authority to deny a permit whenever in its judgment issuance would adversely affect the "interests or property" of any person, or merely "the general public interest." [FN1] The absence of more definite standards suggests that the Board is as much a political as an adjudicatory body. The relatively precise legal standards in light of which certain arguments may be characterized as "frivolous" are simply absent from the rough and tumble of the political arena; almost any position, including the self-interested plea of one competitor that another should be denied a permit, may be urged before such a political body. We find it particularly hard to accept the characterization as "baseless" or "frivolous" of opposition which is entirely successful in obtaining the governmental action sought, as apparently was the case here.[FN2]

[FN1] Section 3.651 provides, in pertinent part: 3.651 Functions, Powers and Duties . . . (A)ny person who deems that his interests or property or that the general public interest will be adversely affected as a result of operations authorized by or under any permit or license granted or issued by any department may appeal to the board of permit appeals. Such board shall hear the applicant, the permit-holder, or other interested parties, as well as the head or representative of the department issuing or refusing to issue such license or permit, or ordering the revocation of the same. After such hearing and such further investigation as the board may deem necessary, it may concur in the action of the department authorized to issue such license or permit, or, by the vote of four members, may overrule the action of such department and order that the permit or license be granted, restored or refused.

[FN2] McDonald's might have a remedy in the California courts if the Board improperly reversed the granting of its permits. Nothing in the complaint indicates that it has attempted to obtain such a remedy. We know of no case that holds that joint action which succeeds in persuading a public body to make an erroneous decision can give rise to a cause of action under the Sherman Act.

Be that as it may, the question before us is not whether defendants' arguments were frivolous, but, assuming that they were, whether the defendants' opposition, as alleged in the complaint, is a violation of the Sherman Act. We think not.

In Eastern Railroad Presidents Conference v. Noerr Motor Freight, 1961, 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464, a group of railroads had hired a public relations firm to conduct a two-pronged campaign against competing truckers. One component was a lobbying effort to influence state legislators and executive officers to enact and zealously enforce legislation restricting the trucking industry. The other was a publicity campaign which, according to the truckers, was intended to destroy their general public reputation and the goodwill they had built up with their customers in order to enhance the railroads' share of the long distance freight market.

With respect to the direct lobbying effort, the Supreme Court declared categorically 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 (of trade) or a monopoly. Id. at 136, 81 S.Ct. at 529.
The Court felt that a contrary construction of the Sherman Act would threaten the First Amendment right of petition, and curtail the flow of valuable information to the government from citizens and groups seeking to influence governmental action. See 365 U.S. at 137-38, 81 S.Ct. 523.

For similar reasons, the Court found that the lobbying immunity also encompassed the railroads' publicity campaign, even though the trial court had found that its sole purpose had been to inflict competitive injury and that the tactics employed had been deceptive and unethical:

The right of the people to inform their representatives in government of their desires with respect to the passage or enforcement of laws cannot properly be made to depend upon their intent in doing so. It is neither unusual nor illegal for people to seek action on laws in the hope that they may bring an advantage to themselves and a disadvantage to their competitors. . . . Indeed, it is quite probably people with just such a hope of personal advantage who provide much of the information upon which governments must act. . . .

We . . . hold that, at least insofar as the railroads' campaign was directed towards obtaining governmental action, its legality was not at all affected by any anticompetitive purpose it may have had.

* * *

It is inevitable, whenever an attempt is made to influence legislation by a campaign of publicity, that an incidental effect of that campaign may be the infliction of some direct injury upon the interests of the party against whom the campaign is directed. And it seems equally inevitable that those conducting the campaign would be aware of, and possibly even pleased by, the prospect of such injury. To hold that the knowing infliction of such injury renders the campaign itself illegal would thus be tantamount to outlawing all such campaigns. Id. at 139-40, 143-44, 81 S.Ct. at 530-533.

In United Mine Workers v. Pennington, 1965, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626, the Court reaffirmed the Noerr lobbying immunity and particularly emphasized the irrelevance of the petitioners' underlying motivation:

Noerr shields from the Sherman Act a concerted effort to influence public officials regardless of intent or purpose. The Court of Appeals, however, would hold the conduct illegal depending upon proof of an illegal purpose. . . . (This holding is not) permitted by Noerr for the reasons stated in that case. Joint efforts to influence public officials do not violate the antitrust laws even though intended to eliminate competition. Such conduct is not illegal, either standing alone or as part of a broader scheme itself violative of the Sherman Act. Id. at 670, 85 S.Ct. at 1593.
The activities of defendants specifically alleged in the complaint before us consist entirely of attempts to lobby and petition a governmental body. Under Noerr and Pennington, supra, these activities are absolutely immune from antitrust liability.[FN3]
[FN3] While Noerr and Pennington involved attempts to influence legislative and executive action, it is now clear that the same principles govern efforts by citizens or groups to influence administrative and judicial proceedings. California Motor Transport Co. v. Trucking Unlimited, 1972, 404 U.S. 508, 510, 92 S.Ct. 609, 30 L.Ed.2d 642.
McDonald's reliance on the Noerr "sham exception" is misplaced. That exception does not extend to direct lobbying efforts such as those alleged here, but only to publicity campaigns, which this complaint does not allege. The following is the whole of the Noerr opinion's comment on the sham exception:

There 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. But this certainly is not the case here. No one denies that the railroads were making a genuine effort to influence legislation and law enforcement practices. Indeed, if the version of the facts set forth in the truckers' complaint is fully credited, as it was by the courts below, that effort was not only genuine but also highly successful. Under these circumstances, we conclude that no attempt to interfere with business relationships in a manner proscribed by the Sherman Act is involved in this case. 365 U.S. at 144, 81 S.Ct. at 533 (emphasis added).

Even if the sham exception did apply to direct lobbying efforts, its scope is limited to situations where the defendant is not seeking official action by a governmental body, so that the activities complained of are "nothing more" than an attempt to interfere with the business relationships of a competitor. See Handler, Twenty-Five Years of Antitrust, 73 Colum.L.Rev. 415, 436. Here it is clear that defendants were seeking and obtained official action from a governmental body, denial of McDonald's permit applications by the Board.

Equally erroneous is the contention that the specific conduct alleged falls within a further exception to Noerr created by California Motor Transport Co. v. Trucking Unlimited, 1972, 404 U.S. 508, 92 S.Ct. 609, 30 L.Ed.2d 642. In that case the Court held that a claim for relief was stated by a complaint which alleged that a group of large trucking companies had established a joint trust fund to finance indiscriminate opposition to every application for certificates of public convenience and necessity that smaller competitors filed with state and federal regulatory agencies. But the allegations which both this court and Justice Douglas' majority opinion found " more critical" (404 U.S. at 508, 92 S.Ct. 609) in that complaint that a well financed campaign to oppose competitors' applications was widely publicized and that express threats of expensive and time-consuming opposition were communicated to the competitors have no identifiable analogue in the complaint before us here. In its opinion, the Court said that these allegations "are too lengthy to quote" (id.). They are summarized in this court's opinion. See Trucking Unlimited v. California Motor Transport Co., 9 Cir., 1970, 432 F.2d 755, 757, 762. The contrast between those allegations and the allegations in this case is marked. While McDonald's alleges, as did the plaintiffs in Trucking Unlimited, that the purpose and effect of the defendants' opposition is "to foreclose the Company from free and unlimited access" to administrative agencies, its complaint is unlike that in Trucking Unlimited in that it fails to allege any means by which defendants have achieved, or plan to achieve, their alleged goal of barring McDonald's from access to the Board. There is no allegation that defendants have conducted a publicity campaign, no allegation that their efforts are jointly financed, and, most importantly, no allegation that defendants have by communicating threats sought to deter McDonald's from filing permit applications. The only facts relied on to support the otherwise wholly conclusory access-barring allegation are the appearances of defendants' members and others before the Board and the threats to withdraw political support, on three occasions. Both of these activities are clearly within the direct lobbying immunity recognized by Noerr, Pennington and Trucking Unlimited itself.[FN4]
[FN4] "We conclude that it would be destructive of rights of association and of petition to hold that groups with common interests may not, without violating the antitrust laws, use the channels and procedures of state and federal agencies and courts to advocate their causes and points of view respecting resolution of their business and economic interests vis-a-vis their competitors." Trucking Unlimited, supra, 404 U.S. at 510-11, 92 S.Ct. at 612. The qualification of this statement later in Justice Douglas' opinion, viz., that the right to petition, though protected by the First Amendment, does not necessarily confer antitrust immunity on the petitioner (id. at 513, 92 S.Ct. 609), must be read in light of Noerr and Pennington and in light of the facts of Trucking Unlimited itself. So considered, we think it plain that this qualification means no more than that defendants who engage in Noerr-protected lobbying activities may nevertheless subject themselves to antitrust liability if they engage in activities external to or abusive of the legislative, administrative or judicial process, which activities, like the threats of opposition in Trucking Unlimited, tend "to harass and deter . . . competitors from having 'free and unlimited access' to (appropriate) agencies." See id. at 515, 92 S.Ct. at 614; Handler, supra, 73 Colum.L.Rev. at 436-39; Note Limiting the Antitrust Immunity for Concerted Attempts to Influence Courts and Administrative Agencies: Analogies to Malicious Prosecution and Abuse of Process, 86 Harv.L.Rev. 715, 732-35. No allegations that defendants have engaged in any external activities of this type appear in McDonald's complaint.
Ordinarily the conclusory nature of plaintiffs' allegations might warrant greater indulgence, for dismissal of a complaint is normally proper under Rule 12(b)(6) only if "it appears beyond doubt that the plaintiff(s) can prove no set of facts in support of (their) claim which would entitle (them) to relief." Conley v. Gibson, 1957, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80; Corsican Productions v. Pitchess, 9 Cir., 1964, 338 F.2d 441, 442. But this is not an ordinary case. The Supreme Court has recognized that the right to associate and to petition an administrative agency to take official action in the exercise of its powers is guaranteed by the First Amendment. Trucking Unlimited, supra, 404 U.S. at 510-11, 92 S.Ct. 609. Yet McDonald's would have us hold, in effect, that a claim for relief under the Sherman Act is stated by a mere conclusory allegation that this right is being exercised for the purpose of barring a competitor from access to the agency. We decline this invitation because to condition the right to associate and petition on the motivations of the petitioners would have a chilling effect on exercise of this fundamental First Amendment right, and such a ruling would in a practical sense render the Trucking Unlimited exception coextensive with the Noerr immunity.

Regardless of what the actual facts might be, what plaintiff interested in deterring his competitors' opposition before a governmental body would fail to recite in its complaint the conclusory "access-barring" incantation? And what competitor, knowing that its participation in administrative proceedings might result in expensive and burdensome litigation, which would drag on through the discovery stage at least, would not thereby feel pressured to forego presenting its views to the government? Particularly in antitrust litigation, the long drawn out process of discovery can be both harassing and expensive. When this well known fact is combined with the large damages usually claimed (here at $11,100,000.00) and sometimes awarded, an action like this one can be, from the very beginning, a most potent weapon to deter the exercise of First Amendment rights.

Note! This case is continued in Part Two


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