# Franchise Realty Interstate Corporation and McDonald Systems of California, Inc. v. San Francisco Local Joint Executive Board of Culinary Workers > Court of Appeals for the Ninth Circuit · November 2, 1976 · 542 F.2d 1076 URL: https://www.frixlaw.com/law-library/cases/9463150 ## Case - **Full name:** 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 - **Court:** Court of Appeals for the Ninth Circuit - **Decided:** November 2, 1976 - **Citations:** 542 F.2d 1076 - **Precedential status:** Published - **Opinion:** Concurrence by Markey - **Judges:** Browning, Duniway, Markey, Patent - **Cited by:** 123 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9463150 ## How later opinions describe it (automated extraction) - holding that “in any case ... where a plaintiff seeks damages or injunctive relief, *1232 or both, for conduct which is prima facie protected by the First Amendment, the danger that the mere pendency of the action will chill the exercise of First Amendment rights requires more… - holding that "in any case ... where a plaintiff seeks damages or injunctive relief, or both, for conduct which is prima facie protected by the First Amendment, the danger that the mere pendency of the action will chill the exercise of First Amendment rights requires more speci… - holding that a party invoking an exception to 11 Noerr-Pennington immunity “must include specific allegations of the specific activities” which bring 12 the opposing party outside the doctrine’s protective umbrella - noting that precise standards “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” - rejecting the judicial sham exception with respect to proceedings before the San Francisco Board of Permit Appeals, after concluding that the Board was essentially a political body ## Opinion text MARKEY, Chief Judge, United States Court of Customs and Patent Appeals (concurring): I concur in the excellent opinion of Judge Duniway. The presence of Judge Browning’s strong and scholarly dissent, particularly its clear and forceful exposition of pleading considerations, prompts these few remarks. I cannot find an allegation that defendants “did foreclose” free and unlimited access. Paragraph 18 alleges the defendants’ opposition was a coverup of a “plan” to foreclose. Moreover, it would appear that McDonald’s could not allege such foreclosure. It had full access. Whatever “free and unlimited” may mean, it cannot, in my view, require successful access or access unopposed. Nothing of record indicates that McDonald’s feared defendants’ opposition or that its freedom and ability to seek future permits was in any manner “chilled” by the expected opposition of defendants. On the contrary, as Judge Duniway’s opinion makes plain, the present suit for $11,-000,000 has an inherent chill factor with respect to defendants’ freedom to oppose future permits. In any event, the case illustrates, in my view, an effect of the unhappy marriage of “notice” pleading and virtually unlimited discovery. * The “might makes right” potential in that combination is, of course, completely contrary to the intent behind the effort to free the pre-trial phase from formalism and surprise. In today’s litigious milieu, a reversal based on rigid adherence to the Federal Rules of Civil Procedure herein is not likely to have a shock value sufficient to force reform. However that may be, I believe such an attractively conservative approach should await an instance in which the exercise of First Amendment rights of speech, association, and petition would not, as here, be so clearly impeded. See National Conference of the Causes of Popular Dissatisfaction with the Administration of Justice, 70 Federal Rules Decisions 79 (1976). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9463150. Public record. Not legal advice.