Care One Management LLC v. United Healthcare Workers East

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________
No. 19-3693
_______________
CARE ONE MANAGEMENT, LLC, ET AL.,
Appellants
v.
UNITED HEALTHCARE WORKERS EAST, ET AL.
________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 2:12-cv-06371)
District Judge: Honorable Susan D. Wigenton
______________________
Argued: September 24, 2020
_______________
Before: McKEE, JORDAN, and RENDELL, Circuit Judges.
(Opinion filed: December 17, 2021)
Rosemary Alito [Argued]
George P. Barbatsuly
K&L Gates
One Newark Center
10th Floor
Newark, NJ 07102
Donald Burke
Roy T. Englert, Jr.
Robbins Russell Englert Orseck Untereiner & Sauber
2000 K Street, N.W.
4th Floor
Washington, DC 20006
Counsel for Plaintiff-Appellants
A. Matthew Boxer
Lowenstein Sandler
One Lowenstein Drive
Roseland, NJ 07068
Leon Dayan [Argued]
Jacob Karabell
Caitlin D. Kekacs
Joshua A. Segal
Bredhoff & Kaiser
805 15th Street, N.W.
Suite 1000
Washington, DC 20005
David M. Slutsky
Levy Ratner
80 Eighth Avenue
8th Floor
New York, NY 10011
R. Scott Thompson
Wollmuth Maher & Deutsch
500 Fifth Avenue
12th Floor
New York, NY 10110
Counsel for Defendants-Appellees
2
______________
OPINION
______________
McKee, Circuit Judge.
Plaintiff-Appellants Care One Management, LLC;
HealthBridge Management, LLC (“HealthBridge”); the Care
3
One Facilities;1 and the HealthBridge Facilities2 (collectively,
“Care One”) manage nursing homes and assisted-living
1
Care One manages 21 facilities located throughout the State
of New Jersey including the following: Care One at
Birchwood, LLC, d/b/a Care One at The Highlands; Care One
at East Brunswick, LLC, d/b/a Care One at East Brunswick;
Care One at Hamilton, LLC, d/b/a Care One at Hamilton;
Care One at Madison Avenue, LLC, d/b/a Care One at
Madison Avenue; Care One at Mercer, LLC, d/b/a Care One
at Ewing; Care One at Parsippany-Troy Hills, LLC, d/b/a
Care One at Morris; Care One at Teaneck, LLC, d/b/a Care
One at Teaneck; Care One at Wall, LLC, d/b/a Care One at
Wall; Care Two, LLC, d/b/a Care One at Livingston; Care
One at Moorestown, LLC, d/b/a Care One at Moorestown;
Elmwood Evesham Associates, LLC, d/b/a Care One at
Evesham; HCC, LLC, d/b/a Care One at Holmdel; King
James Care Center of Middletown, LLC, d/b/a Care One at
King James; Millennium Healthcare Centers II, LLC, d/b/a
Care One at Dunroven; Millennium Healthcare Centers II,
LLC, d/b/a Care One at Valley; Millennium Healthcare
Centers, LLC, d/b/a Care One at Pine Rest; Millennium
Healthcare Centers, LLC, d/b/a Care One at The Cupola; 11
History Lane Operating Company, LLC, d/b/a Care One at
Jackson; 101 Whippany Road Operating Company, LLC
d/b/a Care One at Hanover Township; 301 Union Street,
LLC, d/b/a Care One at Wellington; and 493 Black Oak
Ridge Road, LLC, d/b/a Care One at Wayne; the
Rehabilitation Center at Raritan Bay Medical Center, LLC
d/b/a Care One at Raritan Bay Medical Center; Care One at
Trinitas, LLC, d/b/a LTACH – CareOne at Trinitas Regional
Medical Center; and Care One at Harmony Village, LLC,
d/b/a CareOne Harmony Village at Moorestown (collectively
referred to herein as the “Care One Facilities”). Care One
Mgmt., LLC v. United Healthcare Workers E., No. 12-6371,
2019 WL 5541410, at *1 n.1 (D.N.J. Oct. 28, 2019).
2
The HealthBridge Facilities include the following: 600
Kinderkamack Road Operating Company, LLC, d/b/a Oradell
Health Care Center; 800 River Road Operating Company,
LLC, d/b/a Woodcrest Health Care Center; 2 Cooper Plaza
Operating Company, LLC, d/b/a South Jersey Health Care
Center; 1621 Route 22 West Operating Company, LLC, d/b/a
4
facilities throughout the Northeast. Defendant-Appellees are
1199SEIU United Healthcare Workers East (“UHWE”), New
Somerset Valley Rehabilitation and Nursing Center; 341
Jordan Lane Operating Company II, LLC, d/b/a Wethersfield
Health Care Center; 1 Burr Road Operating Company II,
LLC, d/b/a Westport Health Care Center; 107 Osborne Street
Operating Company II, LLC, d/b/a Danbury Health Care
Center; 240 Church Street Operating Company II, LLC, d/b/a
Newington Health Care Center; 245 Orange Avenue
Operating Company II, LLC, d/b/a West River Health Care
Center; 710 Long Ridge Road Operating Company II, LLC,
d/b/a Stamford Health Care Center; 162 South Britain Road
Operating Company II, LLC, d/b/a River Glen Health Care
Center; 2028 Bridgeport Avenue Operating Company II,
LLC, d/b/a Golden Hill Health Care Center; 745 Highland
Avenue Operating Company, LLC, d/b/a The Highlands
Health Care Center; 135 Benton Drive Operating Company,
LLC, d/b/a Redstone Health Care Center; 178 Lowell Street
Operating Company, LLC, d/b/a Lexington Health Care
Center; 19 Varnum Street Operating Company, LLC, d/b/a
Lowell Health Care Center; 199 Andover Street Operating
Company, LLC, d/b/a Peabody Glen Health Care Center;
2101 Washington Street Operating Company, LLC, d/b/a
Newton Healthcare Center; 221 Fitzgerald Drive Operating
Company, LLC, d/b/a New Bedford Health Care Center; 260
Easthampton Road Operating Company, LLC, d/b/a Holyoke
Rehabilitation Center; 312 Millbury Avenue Operating
Company, LLC, d/b/a Millbury Health Care Center; 49
Thomas Patten Drive Operating Company, LLC, d/b/a Cedar
Hill Health Care Center; 548 Elm Street Operating Company,
LLC, d/b/a Calvin Coolidge Nursing and Rehab. Center for
Northhampton; 57 Old Road to Nine Acre Corner Operating
Company, LLC, d/b/a Concord Health Care Center; 64
Performance Drive Operating Company, LLC, d/b/a
Weymouth Health Care Center; 750 Woburn Street Operating
Company, LLC, d/b/a Wilmington Health Care Center; Park,
Marion and Vernon Streets Operating Company, LLC, d/b/a
Brookline Health Care Center; 265 Essex Street Operating
Company, LLC, d/b/a Essex Park Rehabilitation Center; and
DES Senior Care Holdings LLC, d/b/a Sweet Brook Care
Centers (collectively referred to herein as the “HealthBridge
Facilities”). Id. at n.2.
5
England Health Care Employees Union, District 1199
(“NEHCEU”), and two labor unions affiliated with Service
Employees International Unions (“SEIU”) (collectively,
“Unions”).
The Unions represented several employees at various
Care One facilities. Care One sued the Unions for damages
arising from actions that Care One alleged amounted to a
pattern of racketeering in violation of the Racketeer Influenced
and Corrupt Organizations (RICO) Act, based upon, inter alia,
its characterization of these actions as “extortionate.”3
The District Court granted the Unions’ motion for
summary judgment and dismissed the complaint. The Court
held that no reasonable juror could conclude that the vandalism
underlying Care One’s claims could be attributed to union
members, much less the Unions themselves.4 It also concluded
that other actions the Unions undertook to exert pressure on
Care One—including advertisements, picketing, and attempts
to invoke regulatory and legislative processes—were not
“extortionate.” The Court further concluded that Defendants
lacked the specific intent to deceive and, therefore, were
entitled to summary judgment on the mail and wire fraud
claims.5 This appeal followed.
Notwithstanding the protests of our dissenting
colleague—expressing extreme distaste for the Unions’
tactics—the caselaw compels us to conclude that the District
Court correctly decided that labor tactics, such as the Unions
engaged in here, are not extortionate and accurately reasoned
the remaining issues before it. Thus, for the reasons we discuss
below, we will affirm.6
3
18 U.S.C § 1961 et seq.
4
Care One, 2019 WL 5541410, at *6.
5
Id. at *7–10.
6
The District Court had jurisdiction pursuant to 28 U.S.C. §
1331, 28 U.S.C. § 1337, and 28 U.S.C. § 1367. We have
jurisdiction pursuant to 28 U.S.C. § 1291. We review a grant
of summary judgment de novo. Tundo v. Cnty. of Passaic,
923 F.3d 283, 286 (3d Cir. 2019). A district court properly
grants summary judgment if the moving party shows there is
“no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Id. at 287 (citing
6
I. Factual Background
This suit is the culmination of a history of conflict and
animosity that has unfortunately characterized the relationship
between Care One and the Unions. In 2010 and 2011, the
Unions filed charges against Care One with the National Labor
Relations Board.7 The Unions alleged that Care One had
improperly terminated or threatened employees, improperly
discontinued benefits, and wrongfully suppressed union
communications at the Connecticut Facilities.8 They also
alleged that Care One had engaged in unfair labor practices
during and after a union election in the Somerset, New Jersey
Facility.9 The NLRB issued Complaints and Notices of
Hearing charging Care One with interfering with rights
guaranteed by the National Labor Relations Act, including
refusal to bargain collectively and in good faith.10
Beginning in January 2011, while the NLRB complaints
were pending, NEHCEU and Care One unsuccessfully
attempted to negotiate a renewal of the Connecticut Facilities’
collective bargaining agreements.11 Thereafter, in June 2012,
NEHCEU called a strike at those facilities to begin on July 3,
2012.12 On the night before the strike was to begin, the
Connecticut Facilities were vandalized and sabotaged.13
Patient identifying information (including patient wrist bands,
door name plates, and dietary requirement documents) were
mixed up.14 Medical records were altered, medical equipment
was damaged or hidden, and laundry equipment was
vandalized.15 At Care One’s request, the Connecticut State’s
Attorney investigated, but the investigation yielded neither
suspects nor charges.
Fed. R. Civ. P. 56(a)). We view the facts “in the light most
favorable to the non-moving party and [draw] all reasonable
inferences in that party’s favor.” Id. (citations omitted).
7
Care One, 2019 WL 5541410, at *2.
8
Id.9
Id.10
Id.11
Id., at *3.
12
Id.
13
Id.
14
Id.
15
Id.
7
Union documents later obtained in discovery revealed
the Unions’ plans to inspire workers to “become angry about
their working conditions”16 and to resort to “more militant”
levels of activity.17 The President of the NEHCEU also made
a speech to workers in which he told them that “the law takes
too long” and that NEHCEU “could be destroyed by the time
the law was able to stop [Care One’s] behavior.”18 After the
incidents, NEHCEU’s communications director wrote to
fellow employees, referring to the allegations of vandalism and
destruction. The communication sent out to union members
included the statement: “Of course anyone with a pea-sized
brain would realize this isn’t a tactic we would undertake.”19
When a reporter asked the NEHCEU about the vandalism and
destruction at the Care One facilities, NEHCEU's
communications director wrote:
The allegations made by HealthBridge, if true,
are very serious indeed. Should evidence be
found that anyone took any action that would
compromise care or put residents at risk, that
person or persons should be held fully
accountable, no matter who they might be.20
The record also contains several emails from the time
following the incident. They include an email from Deborah
Chernoff, Communications Director of the New England
Health Care Employees Union, District 1199, SEIU, which
describes a response to a FOIA request the Unions made to the
Department of Health as “mudd[ying] the waters and
support[ing] the contentions of the workers that” patients may
have removed their identifying bracelets themselves rather
than saboteurs.21 There is also an email from Chernoff to Chas
Walker, Elected Organizer, and others in SEIU. It was sent
after the vandalism and sabotage. The email appears to be a
16
JA 5852, a facilitator teaching document with the goal of
“answer[ing] tough questions and redirect[ing] conversations
to an organizing agenda.”
17
JA 5849, a supervisor’s evaluation form for an individual
organizer.
18
Defs.’ Summ. J. Reply 5.
19
JA 6825.
20
JA 1068.
21
JA 5842.
8
response to Walker’s suggestion that Unions launch their own
investigation or actively seek to participate in the police
investigation. In the email, Chernoff suggested it would be “a
very bad idea” to seek to participate in the police investigation
because the Unions should not “suggest [they] have
information [they] don’t have.”22 The email also stressed the
Unions’ obligation to their members.
In addition, in 2011, with the assistance of NEHCEU
and UHWE, SEIU launched a campaign attacking Care One’s
labor and business practices. The campaign materials included
developing websites, print and radio advertisements, as well as
flyers questioning Care One’s billing practices and standards
of care. The campaign also publicized the NLRB complaints.23
The Union advertisements Care One focuses on before us
included several rhetorical questions. The first asks: “Are
HealthBridge Nursing Homes Employing Enough Caregivers
For Our Loved Ones?” It asserts Care One provided below-
average coverage by certified nursing assistants.24 The second
asks: “Is HealthBridge Giving Your Loved One Anti-Psychotic
Drugs?” and asserts that Care One excessively administered
medications.25 The third asks: “Overbilled at a HealthBridge
Nursing Home?,” and references overbilling.26 The fourth
asks: “Who’s in charge At HealthBridge Nursing Homes?” and
states that the facilities have an unhealthy level of turnover.27
The Unions submitted evidence to the District Court to
show that this publicity campaign was subject to fact-checking
and vetting procedures. But Care One alleges no such
safeguards were in place. Despite Care One’s allegations to
the contrary, Amy Gladstein, UHWE’s Assistant for Strategic
Organizing, testified that the Unions had adopted certain
protocols requiring researchers to be trained in conducting
careful research. She also claimed that the advertisements
were based on initial fact-gathering. She said the work had to
be “vetted by the research department for accuracy,”28 and the
22
JA 5831.
23
Care One, 2019 WL 5541410, at *3.
24
JA 2491.
25
JA 2501.
26
JA 2477.
27
JA 2494.
28
JA 2761.
9
advertisements were fact-checked by trusted researchers and
outside counsel.29
From July through November 2011, the UHWE also
filed petitions for public hearings on applications for
“determinations of need,” which Care One had filed with the
Massachusetts Department of Health to obtain approval for
capital improvement projects at their facilities.30 The Unions’
objections delayed approval of Care One’s applications.
In February 2012, the Unions also asked Senator
Richard Blumenthal, one of Connecticut’s two United States
Senators, to investigate Care One’s alleged questionable
billing practices. Senator Blumenthal responded by asking the
Secretary of Health and Human Services to audit Care One’s
billing practices.
The Unions’ campaign also included peaceful
demonstrations, including one held in August 2012 at Care
One’s offices, where petitions for fair collective bargaining
were delivered to Care One’s owner and CEO, Daniel Straus.
In addition, the Unions staged a peaceful protest at NYU Law
School where demonstrators handed out materials questioning
Straus’s purported hypocrisy for endowing the Institute for the
Advanced Study of Law & Justice at NYU while allegedly
violating labor law.
II. Procedural Background
Care One brought this suit for damages based on claims
of defamation, trade libel, and racketeering. The Complaint
alleged that the Unions’ conduct transcended the limits of
organizing or legitimate advocacy and was more accurately
defined as a pattern of racketeering activity under RICO.31
Indeed, the animosity between Care One and the Unions as
well as Care One’s assessment of the Unions’ “advocacy” is
forcefully communicated at the outset of Appellants’ Brief.
29
See JA5327 (cite checking was “Megan [Thorsfeldt’s] job
and I trust her”); JA2642 (vetting was conducted on the
research side and legal side); JA5134 (accuracy was the
responsibility of “our research team” and “counsel”); JA 3718
(Gladstein explaining that “my researchers” were responsible
for accuracy).
30
JA 1480–84.
31
Care One, 2019 WL 5541410, at *5.
10
There, Care One implies that the defendants are labor unions
in name only.32
III. Discussion
RICO imposes criminal and civil liability upon those
who engage in certain “prohibited activities.”33 It allows for
civil remedies for “[a]ny person injured in his business or
property by reason of a violation of [18 U.S.C. § 1962].”34
Under § 1962(c), to establish civil liability, a plaintiff must
show that defendant(s) acted as an “enterprise” and conducted
a “pattern of racketeering activity” through certain criminal
predicate acts.35 These predicate acts include federal crimes
such as extortion, mail fraud, and wire fraud, and certain state
crimes, including extortion.36 For an act to be a predicate
offense under state law, the conduct must be “generically
classified as extortionate.” 37 The generic definition of
extortion is “obtaining something of value from another with
his consent induced by the wrongful use of force, fear, or
threats.”38
Care One contends that the Unions extorted Care One
through sabotage and vandalism and by applying economic
pressure. It claims that the Unions thereby committed
predicate acts of extortion in violation of Connecticut, New
Jersey, and Massachusetts state law.39 The District Court
employed a generic definition of extortion and used the federal
Hobbs Act definition of “wrongfulness” from Brokerage
32
Appellants’ Br. at 1 (“The defendants in this case are labor
unions, at least in name . . . .”).
33
H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 232
(1989).
34
Wilkie v. Robbins, 551 U.S. 537, 563 (2007) (alterations in
original) (citing 18 U.S.C. § 1964(c)).
35
18 U.S.C. § 1962(c).
36
Id. § 1961(1)(A), (B). Here, it is not disputed that a labor
union can constitute a RICO enterprise if its affairs are
conducted through a pattern of racketeering activity. See
United States v. Parise, 159 F.3d 790, 795 (3d Cir. 1998).
37
Scheidler v. Nat'l Org. for Women, Inc., 537 U.S. 393, 409
(2003).
38
Id. (emphasis added).
39
Care One Mgmt., LLC, 2019 WL 5541410, at *5.
11
Concepts, Inc. v. U.S. Healthcare, Inc.40 Care One argues that
the District Court erred in using a federal Hobbs Act definition
of “wrongfulness” in concluding that the Unions were not
guilty of extortion under state law. The District Court did not
err.
As we explained above, the generic definition of
extortion is “obtaining something of value from another with
his consent induced by the wrongful use of force, fear, or
threats.”41 The Hobbs Act definition of extortion has the same
“wrongful use” element as generic extortion.42 Accordingly,
the generic definition and the Hobbs Act definition are
40
Id. at *5–7 (citing 140 F.3d 494 (3d Cir. 1998)).
41
Id. at *5 (emphasis added) (quoting Scheidler, 537 U.S. at
409). See Brokerage Concepts, Inc. v. U.S. Healthcare, Inc.,
140 F.3d 494, 503 (3d Cir. 1998).
42
The generic definition of extortion is “obtaining something
of value from another with his consent induced by the
wrongful use of force, fear, or threats.” United States v.
Nardello, 393 U.S. 286, 290 (1969). Whereas the Hobbs
definition is “obtaining of property from another, with his
consent, induced by wrongful use of actual or threatened
force, violence, or fear, or under color of official right.” 18
U.S.C. § 1951(b)(2). See also United States v. Enmons, 410
U.S. 396, 399–400 (1973) (interpreting the statutory language
of the statute).
12
substantially the same.43 Hobbs Act cases are therefore
relevant to our analysis of state law extortion claims.44
1. Extortion
Care One relies on two purported types of extortionate
acts to establish the requisite RICO predicates.45 It alleges that
the Unions resorted to fear of economic loss to obtain property
through campaigns and petitioning and attempted to obtain
property by force through a Union-authorized sabotage on the
eve of the Connecticut strike. We will address each claim in
turn.
a. Extortion Through Fear of Economic Loss
We conclude that the Unions’ conduct—employing
pressure campaigns, regulatory processes, and the criminal
justice system—does not subject them to liability under the
Hobbs Act.
43
The Dissent’s suggestion that it may be incorrect to treat
these definitions the same is plainly at odds with the caselaw
discussed above. The Dissent offers no caselaw as support
for this assertion, but simply suggests that the “linguistic
parsing in Enmons is . . . not obviously applicable.” Dissent
at 5. Confusingly, the Dissent cites A Study of Statutory
Blackmail and Extortion in the Several States as comparative
support for the assertion that “no authority has been offered
[by the Majority] to suggest that, outside of the Hobbs Act as
narrowly interpreted by Enmons, laws against extortion have
ever been generally understood to be inapplicable to labor
unions.” Id. at 5 (citing Alice Kramer Griep, Comment, A
Study of Statutory Blackmail and Extortion in the Several
States, 44 MICH. L. REV. 461 (1945)). Even a cursory look at
this article reveals that it does not actually support the stated
assertion; this article is from 1945, which is almost thirty
years before Enmons was even decided, and it also explicitly
excludes “threats which are punishable even though no
property is demanded”—the exact type of conduct that
applies in the context of labor unions—as being outside “the
scope of this paper.” Griep, supra note 52, at 462.
44
See, e.g., United Bhd. of Carpenters v. Bldg. & Constr.
Trades Dep’t, 770 F.3d 834 (9th Cir. 2014).
45
18 U.S.C. § 1961(1).
13
First, United States v. Enmons46 and Brokerage
Concepts, Inc. v. U.S. Healthcare, Inc.47 foreclose Hobbs Act
liability for a union pursuing legitimate labor objectives, such
as increased pay or better working conditions. This carve-out
from Hobbs Act liability for a union pursuing legitimate labor
objectives has been termed the “claim-of-right defense.”48 In
Enmons, the Supreme Court held that this defense protects “the
use of violence to achieve legitimate union objectives, such as
higher wages in return for genuine services which the employer
seeks.”49 There, union members had “fir[ed] high-powered
rifles at three Company transformers, drain[ed] the oil from a
Company transformer, and bl[ew] up a transformer substation
owned by the Company.”50 In finding this conduct was not
“extortion” under the Act, the Court first consulted the
statutory text. The Court reasoned as follows:
The term “wrongful,” which on the face of the
statute modifies the use of each of the
enumerated means of obtaining property—actual
or threatened force, violence, or fear—would be
superfluous if it only served to describe the
means used. For it would be redundant to speak
of “wrongful violence” or “wrongful force”
since, as the government acknowledges, any
violence or force to obtain property is
“wrongful.” Rather, “wrongful” has meaning in
the Act only if it limits the statute's coverage to
those instances where the obtaining of the
property would itself be “wrongful” because the
alleged extortionist has no lawful claim to that
property.51
The Court also relied on legislative evidence that the
Act was not meant to “interfere in any way with any legitimate
labor objective or activity” and that “there is not a thing in it to
46
410 U.S. 396 (1973).
47
140 F.3d 494 (3d Cir. 1998)
48
See, e.g., United States v. Agnes, 753 F.2d 293, 299 (3d Cir.
1985), abrogated by Smith v. Borough of Wilkinsburg, 147
F.3d 272 (3d Cir. 1998).
49
Enmons, 410 U.S. at 400.
50
Id. at 398.
51
Id. at 399–400 (emphasis added) (citations omitted).
14
interfere in the slightest degree with any legitimate activity on
the part of labor people or labor unions.”52 The Court found
that the Hobbs Act simply had no application to labor-
management strife when a union is seeking legitimate ends,
even if the means chosen are destructive.53
We must stress that the Court did not limit this defense
to the strike-violence context, as the Dissent seemingly argues.
Of course, the Enmons Court focused on this context as that
was the situation before it, but the Court also relied on
legislative history stating that the Act was not meant to
interfere with “any” legitimate labor activity—not just strikes.
The Dissent’s approach adds language that the Court could
have used to limit the application of this act but chose not to.
In doing so, the Dissent implicitly suggests that labor unions
should have more latitude in a strike than in negotiations that
may precede a strike.54 This would have absurd consequences
in which companies would be subjected to strikes even though
they were willing to continue negotiations and unions would
be encouraged to go on strike merely to access additional
negotiating tools, thereby injuring their employees and
employers. Neither Congress nor the Supreme Court would
have intended such an impractical and counterproductive
approach to the law of extortion. Logically, if even violence
in the pursuit of core union objectives is not Hobbs Act
extortion, then it is obvious that non-violent forms of coercion,
such as the economic pressure tactics employed here, are
similarly subject to a broad labor-context claim-of-right
52
Id. at 404 (emphasis added).
53
The Enmons Court clarified that the scope of legitimate
labor objectives excludes, for example, threats to obtain
“personal payoffs” or force the hiring of no-show workers.
Id. at 400. The claim-of-right defense is thus inapplicable
where a union uses coercive tactics—whether violent or non-
violent—to “exact ‘wage’ payments from employers in return
for ‘imposed, unwanted, superfluous and fictitious services'
of workers.” Id.54
Although the Dissent claims to “make no distinction . . .
between conduct during strikes and conduct during other
labor negotiations activities,” interpreting Brokerage
Concepts as narrowly as the Dissent would like would
functionally create this distinction whether the Dissent
explicitly recognizes that or not. Dissent at 11, n.10.
15
defense.55 The Dissent argues that “[n]othing in Brokerage
Concepts . . . creates a special immunity for labor unions to
extort business concessions through economic fear.”56 But our
decision in Brokerage Concepts amply supports subjecting
economic pressure tactics to the claim-of-right defense. In
Brokerage Concepts, we concluded that economic pressure is
not “‘inherently’ wrongful” and can fall outside of the Hobbs
Act even in non-labor contexts.57 Clearly, a union’s use of
sharp-edged economic means or “hardball” tactics must
receive the same “carve-out” from Hobbs Act liability as far
more militant tactics. It would be a bizarre outcome indeed if
the Act subjected organized labor to extortion prosecutions for
hard bargaining with management but immunized labor
organizations when that bargaining spills over into violence.58
In arguing to the contrary, the Dissent manifests an
unwillingness to concede the reality of labor strife and the
pressures surrounding it. After all, every strike, as well as the
threat of a strike, is nothing more than an attempt to extort
business concessions through economic fear and intimidation.
55
See, e.g., United States v. Mulder, 273 F.3d 91, 98, 104–06
(2d Cir. 2001) (explaining how the district court was
“correct” to instruct the jury regarding the labor exception
where allegedly extortionate conduct at issue included non-
violent “threats of slowdowns” as well as violence). See also
James J. Brudney, Collateral Conflict: Employer Claims of
Rico Extortion Against Union Comprehensive Campaigns, 83
S. CAL. L. REV. 731, 779 (2010) (“The Enmons holding
applies a fortiori to property obtained through fear of
economic injury, which, unlike force or violence, is not
inherently suspect as a form of pressure.”).
56
Dissent at 9.
57
See Brokerage Concepts, 140 F.3d at 523; see also United
Bhd. of Carpenters & Joiners of Am. v. Bldg. & Const.
Trades Dep’t, AFL-CIO, 770 F.3d 834, 838 (9th Cir. 2014);
United States v. Sturm, 870 F.2d 769, 773 (1st Cir. 1989).
58
Cf. United States v. Vigil, 523 F.3d 1258, 1265 (10th Cir.
2008) (citing Enmons for the proposition that “economic fear
arising from hard bargaining is permitted, for example in the
union context”). Indeed, we have been unable to find (and
the Dissent does not cite) a single case in which a union was
subjected to Hobbs Act liability for purely economic threats
directed at management in pursuit of legitimate labor ends.
16
This application of Enmons finds further support in the
caselaw of our sister Courts of Appeals, which have recognized
that Enmons’s holding is generally applicable to labor-
management conflicts. In United States v. Quinn, for instance,
the Fifth Circuit relied on Enmons to declare that
the Hobbs Act does not condemn the use of
coercive measures to obtain wage increases,
provided labor furnishes the employer with
genuine services in exchange for the wages
sought. . . . [T]he effect of Enmons was to
remove from the reach of federal criminal law
the use of coercive tactics to obtain increased
wages, but with the caveat that the prosecutor's
hand would be stayed only when the payment is
gained in furtherance of legitimate labor
objectives.59
Similarly, in United States v. French, the Eighth Circuit stated
that Enmons stands for the proposition that “the Hobbs Act
does not cover coercive action by unions in pursuit of
legitimate labor goals of higher wages or increased benefits”—
again, not limiting its reach to the strike context as the Dissent
argues.60 And in United States v. Gibson, the First Circuit
upheld as “accurate” jury instructions stating that the Hobbs
Act does not “condemn the use of coercive measures to obtain
wage increases or to carry out a collective bargaining
agreement, if there is an agreement between union and an
employer.”61 These cases plainly read Enmons’s claim-of-
59
514 F.2d 1250, 1257 (5th Cir. 1975) (first and second
emphasis added); see Coercion, BLACK’S LAW DICTIONARY
(11th ed. 2019) (“Compulsion of a free agent by physical,
moral, or economic force or threat of physical force.”)
(emphasis added).
60
628 F.2d 1069, 1075 (8th Cir. 1980) (emphasis added).
61
726 F.2d 869, 874 (1st Cir. 1984) (emphasis added). See
also United States v. Zappola, 677 F.2d 264, 269 (2d Cir.
1982) (explaining how Enmons “carved out a labor exception
to the traditional law of extortion codified in the Hobbs Act”);
Mulder, 273 F.3d at 104 (“There is a labor exception to
culpability for Hobbs Act extortion.”). Although there is
caselaw reading Enmons as narrowly concerned with strike
17
right defense as applicable to any coercive labor action aimed
at legitimate objectives; there is no defensible distinction to be
drawn between violent and non-violent tactics.62
In sum, reading Enmons along with Brokerage
Concepts and other cases construing the claim-of-right defense
makes clear that the Unions cannot be liable under the Hobbs
Act for nonviolent pressure tactics directed against
violence, none of these cases explicitly address the question
of non-violent labor-management strife and most predate our
decision in Brokerage Concepts, in which we relied on
Enmons’s reasoning to cross-apply the claim-of-right defense
to general economic activity. See, e.g., Agnes, 753 F.2d at
299; Brokerage Concepts, 140 F.3d at 503 (cross-applying
Enmons while being “mindful” of earlier cases such as
Agnes); id. at 523 (“The limitation we apply is that set forth in
Enmons: that a defendant is not guilty of extortion if he has a
lawful claim to the property obtained.”); see also United
States v. Tobin, 155 F.3d 636, 640 (3d Cir. 1998) (applying
Enmons in the context of “labor-management conflicts” even
before Brokerage Concepts). Further, in Brokerage
Concepts, we observed that the “line of cases limiting
Enmons” had no bearing on cases involving “solely” the use
of economic threats. 140 F.3d at 523. Moreover, cases that
spoke of “narrowly” construing Enmons tended to do so when
asked to apply its holding beyond the labor-management
strife context, rather than to nonviolent instances thereof.
See, e.g., United States v. Cerilli, 603 F.2d 415, 419 (3d Cir.
1979) (observing that “Enmons is a labor case” in refusing to
apply its reasoning to the coercive solicitation of political
contributions); see also United States v. Thordarson, 646 F.2d
1323, 1330 (9th Cir. 1981) (refusing to extend the Enmons
defense to other criminal statutes). United States v. Debs also
falls in this category. 949 F.2d 199, 201 (6th Cir. 1991).
There, the Sixth Circuit declined to extend the claim-of-right
defense to intra-union threats and violence. Id. at 200–01.
62
The concurring opinion in United States v. Russo is also
instructive here: “While caution should be exercised in
extending Enmons too far—especially to cases outside the
labor context—equal, if not greater, caution should be
exercised in not applying Enmons to cases such as ours which
do involve labor disputes.” 708 F.2d 209, 224 (6th Cir. 1983)
(Holschuh, J., concurring) (emphasis in the original).
18
management in support of legitimate objectives. The Unions
were seeking to advance a legitimate labor goal: forcing Care
One to provide better wages and working conditions to Union
members. To this end, the Unions employed hard-nosed
pressure tactics. Although some may condemn such strategies,
they are not actionable under the Hobbs Act.
Our dissenting colleague would demand more than
Enmons and our caselaw require, arguing that a “reasonably
close relationship” between the Unions’ ends and means is
required for the claim-of-right defense to apply.63 We can
discern no such requirement in the cases. Indeed, the extreme
coercive means employed by the union in Enmons—“firing
high-powered rifles at three Company transformers, draining
the oil from a Company transformer, and blowing up a
transformer substation owned by the Company”64—sound like
exactly the sort of “counterproductive” and “collateral” acts
that the Dissent contends should subject labor organizations
like the Unions to potential extortion liability.65 As we noted
earlier, the Dissent would inappropriately subject the viability
of these unions’ claim-of-right defense to a higher bar in the
context of nonviolent economic campaigns than would apply
if there had been actual violence.66 As we explained, it would
be illogical to interpret Emmons and its progeny in a manner
that encourages unions to go on strike so that they have wider
latitude than they are afforded while they remain at the
bargaining table.
The Dissent cites two cases to support the contention
that there must be a “close relationship” between the means
employed and a legitimate objective: United States v.
Jackson67 and the United States v. Villalobos concurrence.68
63
See Dissent at 16.
64
410 U.S. at 398.
65
See Brokerage Concepts, 140 F.3d at 504 (finding claim-
of-right defense still applied where threatened conduct
concerned an “unrelated market”). In effect, the Dissent
would have us ignore, not just the language and holding of
Enmons, but what necessarily follows therefrom.
66
See Dissent at 15–16.
67
180 F.3d 55, 70 (2d Cir. 1999), rev’d on reh’g on other
grounds, 196 F.3d 383 (2d Cir. 1999). See Dissent at 16.
68
748 F.3d 953, 959 (9th Cir. 2014) (Waterford, J.,
concurring in the judgment). See Dissent at 16.
19
But these are distinguishable as neither analyzes the claim-of-
right defense in the context of labor-management strife, the key
fact here.69 Indeed, the Jackson Court and Villalobos
concurrence do not even cite Enmons, the foundational case
regarding potentially extortionate labor action. Nor is this an
isolated misstep in the Dissent’s analysis. Our colleague
mistakenly cites non-labor cases throughout the Dissent in an
attempt to stretch the Hobbs Act to reach the conduct at issue
here. For example, in citing the concurrence in Villalobos, the
Dissent overlooks the fact that the majority there specifically
noted: “In United States v. Enmons, the Supreme Court
concluded that the use of force to achieve legitimate labor ends
was not extortion.”70 And in citing United States v. Agnes, the
Dissent ignores that we there acknowledged “Judge
Higgenbotham’s cogent warning in Cerilli” that “[a]ny
application of Enmons to cases outside of [the labor] context
must be done with caution. Otherwise there is a danger that
Enmons . . . could effectively repeal the Hobbs Act.”71 These
examples illustrate how the Dissent consistently confuses one
axis of limitation—the refusal to apply Enmons to violent non-
labor actions—for another—whether Enmons applies to non-
69
In Jackson, the defendants attempted to extort Bill Cosby
by threatening to disclose that one of them was his
illegitimate daughter. 180 F.3d at 55–65. In Villalobos, a
lawyer attempted to extort the target of a criminal
investigation by offering to have his client obstruct it in
exchange for money. 748 F.3d at 955. The Ninth Circuit
relied on the premise that “outside the labor context, there are
some attempts to obtain property that are . . . inherently
wrongful.” Id. at 956. The Dissent also cites United States v.
Tobin to insist that the means the Unions employed matter to
the claim-of-right defense’s applicability. Dissent at 14. But
Tobin involved a campaign of telephone harassment
following the defendant’s failed attempt to be hired as a
band’s booking agent—no labor organization was involved.
155 F.3d at 638–39.
70
Villalobos, 748 F.3d at 956. See Dissent at 16 (citing
Villalobos, 748 F.3d at 959) (Watford, J., concurring in the
judgment)).
71
Agnes, 753 F.2d at 299 n.4 (citing 603 F.2d at 419) (second
alteration in original) (emphasis added).
20
violent labor actions.72 The caselaw cannot fairly be read to
foreclose the application of Enmons to non-violent actions
against management undertaken by unions pursuing legitimate
objectives.
In sum, the unique protections from Hobbs Act liability
that Congress has afforded unions in the context of labor
disputes informs and defines our holding. We do not expand
or modify the claim-of-right defense as it applies in the non-
labor context; no fair reading of our analysis will lead to that
result.
We obviously do not condone inappropriate threats or
unreasonably coercive conduct. But since Care One is seeking
relief by means of a RICO claim based on predicate acts of
extortion, its claim is subject to the Unions’ claim-of-right
defense based on the Unions’ legitimate objectives. Since
1973, when the Supreme Court decided Enmons, it has been
clear that “the [Hobbs] Act does not apply to the use of force
to achieve legitimate labor ends.”73 Indeed, the Court
proclaimed then that “[i]n the nearly three [now seven] decades
. . . since the enactment of the Hobbs Act, no reported case has
upheld the theory that the Act proscribes the use of force to
achieve legitimate collective-bargaining demands.”74 If
Congress wishes to change the law so that consideration of a
union’s means plays a role in the analysis, it certainly can do
so. Until it does, Enmons and Brokerage Concepts instruct that
the legitimacy of the Union’s objective is the touchstone of the
analysis.
Labor is simply different. The underlying purpose of a
strike—the ultimate tool of labor—is, after all, inflicting harm
on an employer’s business to exert such economic loss (or
threat of loss) upon that business that the employer agrees to
labor’s demands. Accordingly, as long as unions pursue
legitimate labor objectives, their coercive tactics are simply not
subject to liability under the Hobbs Act.
This does not suggest that the victim of allegedly illegal
union activity is without remedy. There may well be state law
remedies or recourse to other federal laws. However, Care One
seeks recovery under the Hobbs Act, and its reach has well-
defined limits. The Supreme Court long ago interpreted the
72
See supra note 71.
73
Enmons, 410 U.S. at 401.
74
Id. at 407.
21
Act to create a carve-out for union conduct in pursuit of
legitimate labor objectives. That interpretation controls here.
b. Extortion through Sabotage
Care One contends that, based on the timing of the
aforementioned acts of sabotage and the fact that NEHCEU
members had access to both the facilities and patients involved,
a reasonable jury could infer that Union members committed
sabotage.75 We do not disagree. But such an inference, though
reasonable, would fall woefully short of the proof required
under § 6 of Norris-LaGuardia because it is not enough to
transform the acts of any such union members into acts of the
Unions.
Section 6 of the Norris-LaGuardia Act states:
No officer or member of any association or
organization, and no association or organization
participating or interested in a labor dispute,
shall be held responsible or liable in any court of
the United States for the unlawful acts of
individual officers, members, or agents, except
upon clear proof of actual participation in, or
actual authorization of, such acts, or of
ratification of such acts after actual knowledge
thereof.76
The Supreme Court has explained that “‘authorization’ as used
in § 6 means something different from corporate criminal
responsibility for the acts of officers and agents in the course
or scope of employment.”77 Rather, Congress intended to
restrict
liability in labor disputes . . . for unlawful acts of
the officers or members [of unions], although
[they] are acting within the scope of their general
authority as such officers or members [of those
unions] . . . except upon clear proof that the
particular act charged, or acts generally of that
type and quality, had been expressly authorized,
75
Appellants’ Br. at 18.
76
29 U.S.C. § 106.
77
United Bhd. of Carpenters v. United States, 330 U.S. 395,
406 (1947).
22
or necessarily followed from a granted authority
[by the union] or was subsequently ratified [by
the union] after actual knowledge of its
occurrence.78
Thus, a labor union cannot be held liable for the actions
of its members (even if those members are officers of the
union) absent “clear proof of actual participation in, or actual
authorization of, such acts, or of ratification of such acts after
actual knowledge thereof.”79 The standard thus requires
“clear, unequivocal, and convincing proof” rather than “a bare
preponderance.”80 District courts must apply the same
standard at summary judgment that would apply at trial, asking
“whether the evidence presented is such that a jury applying
that evidentiary standard could reasonably find for either the
plaintiff or the defendant.”81 Because § 6 of Norris-LaGuardia
Act requires “clear, unequivocal, and convincing proof” at
trial, the same standard of proof would be required at the
summary judgment level.82
There is a heightened standard here because unions
require heightened protection. The Court explained in United
Brotherhood of Carpenters and Joiners of America that the
limitation set forth in § 6 was intended to:
relieve [labor unions] . . . from liability for
damages or imputation of guilt for lawless acts
done in labor disputes by some individual
officers or members of the organization without
clear proof that the organization or member,
charged with responsibility for the offense,
78
Id. at 407. The Court noted that the Senate Committee
viewed this as “‘a rule of evidence,’ not a ‘new law of
agency.’” Id. at 402. However, the distinction is purely
academic for our purposes and does not affect our analysis.
For a thorough discussion of the complete legislative history
of § 6 of the Norris-LaGuardia Act, see id. at 401–03.
79
29 U.S.C. § 106 (emphasis added).
80
United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 737
(1966).
81
See Anderson v. Liberty Lobby, 477 U.S. 242, 255 (1986).
82
See Gibbs, 383 U.S. at 737.
23
actually participated, gave prior authorization, or
ratified such acts.83
When Congress enacted the Norris-LaGuardia Act in 1932, it
did so to “bring some order out of the industrial chaos that had
developed and to correct the abuses that had resulted from the
interjection of the federal judiciary into union-management
disputes on the behalf of management.”84 Federal courts were
then “regarded as allies of management in [their] attempt to
prevent the organization and strengthening of labor unions; and
in this industrial struggle the injunction became a potent
weapon that was wielded against the activities of labor
groups.”85
Moreover, in United Mine Workers of America v. Gibbs,
the Supreme Court noted that while the Labor Management
Relations Act passed shortly after the decision in United
Brotherhood of Carpenters and allowed a less stringent
standard of proof, Congress did not repeal § 6 of the Norris-
LaGuardia Act.86 Rather, it “left it applicable to cases not
arising under the new Act.”87 The Supreme Court took that
opportunity to reiterate that the “driving force” behind § 6 of
the Norris-LaGuardia Act was the “fear that unions might be
destroyed if they could be held liable for damage done by acts
beyond their practical control.”88 It is therefore now beyond
contention that common-law principles of agency and
respondeat superior have no place in assessing liability of
labor unions for the acts of their members or officers for claims
(such as the ones before us) not falling under the Labor
Management Relations Act.
As this case arises under RICO rather than the Labor-
Management Relations Act, it falls under § 6, which applies to
cases “not arising under the [Labor-Management Relations
83
United Bhd. of Carpenters, 330 U.S. at 403.
84
Boys Mkts., Inc. v. Retail Clerks Union, 398 U.S. 235, 251
(1970).
85
Id. at 250.
86
Gibbs, 383 U.S. at 736.
87
Id.88
Id. at 736–37.
24
Act].”89 The District Court did err in employing the less
stringent Labor Management Relations Act (LMRA) standard,
“that defendants can only be held responsible for the actions of
their members if unions authorized or ratified the acts.”90 In
doing so, it cited Carbon Fuel Co. v. United Mine Workers of
America, which explained that under the LMRA, liability is
limited to those who had “authorized, participated in, or
ratified” the conduct.91 However, that error benefitted Care
One because it allowed Care One a less stringent standard of
proof for surviving summary judgment.
The investigation by the Connecticut State’s Attorney
closed without even identifying any suspects, let alone any
union-member suspects. Furthermore, union membership
alone would not tie the actions of any such members to the
Unions. We have already explained that the Supreme Court
has stressed that common-law agency principles are not
enough to pin the acts of union members (or even union
officers) to the hide of their union for claims not arising under
the LMRA. The law requires that Care One establish that the
Unions authorized or ratified such conduct within the narrow
meaning of § 6 of the Norris-LaGuardia Act, and the evidence
of that must amount to “clear proof” of such authorization or
ratification.92 The evidence here simply does not rise to that
standard.
(i) Authorization
First, there is no admissible evidence that the Unions
authorized the acts of sabotage and vandalism. Care One
reminds us that similar acts were performed at three facilities
targeted by the strike and on the eve of the strike, and that these
acts were similar to the sabotage allegedly connected with a
strike at another employer’s NEHCEU-unionized facility in
2001. Care One suggests that we can connect those dots and
89
Id. at 736. See United Bhd. of Carpenters, 330 U.S. at 403(applying § 6 to Sherman antitrust prosecution); United States
v. Kemble, 198 F.2d 889, 892 (3d Cir. 1952) (applying § 6 to
Hobbs Act extortion prosecution).
90
Care One, 2019 WL 5541410, at *6 (citing United States v.
White, 322 U.S. 694, 702 (1944) and Carbon Fuel Co. v.
United Mine Workers of Am., 444 U.S. 212, 216–17 (1979)).
91
Carbon Fuel, 444 U.S. at 216.
92
29 U.S.C. § 106.
25
conclude that the Unions authorized the conduct. For support,
they invoke the “mass action” theory, citing Eazor Express,
Inc. v. International Brotherhood of Teamsters.93 Under the
mass action theory, union authorization explains an otherwise
inexplicable or improbable pattern of coordinated conduct by
members.94 The premise is that “large groups of [people] do
not act collectively without leadership and that a functioning
union must be held responsible for the mass action of its
members.”95 The mass action theory emerged to address
situations in which thousands of members in different locations
simultaneously act in concert.96 In contrast, here, there is no
evidence that more than a few people acted and Care One does
not contend otherwise.97 Care One insists that it is applying
the logic underlying the mass action theory and relying on
common sense based on the timing and apparent coordination
of the actions rather than the mass action theory per se.
However, Care One cites no cases that would justify expanding
the logic of the mass action theory to the circumstances here,
and we have found none. The number of actors here falls
woefully short of the numbers needed to infer that the Unions
had to have orchestrated these acts. The number is just too
small for the presumption of centralized Union coordination to
apply. Moreover, even if we were to agree that the timing of
the acts suggests unseen coordination, there is nothing to tie it
to the Unions as opposed to a handful of individual union
members acting on their own. The contrary assumption Care
One relies on is far too tenuous to rise to the level of substantial
proof required by § 6 of the Norris-LaGuardia Act.
Care One also points to certain vague remarks by the
agents of the Union to argue authorization. It argues that Union
documents revealed plans to persuade workers to “become
93
Eazor Express, Inc v. Int’l Bhd. of Teamsters, 520 F.2d
951, 963 (3d Cir. 1975), overruled on other grounds by
Carbon Fuel Co. v. United Mine Workers of Am., 444 U.S.
212 (1979).
94
Id.95
Id.96
See Consolidation Coal Co. v. Local 2216, 779 F.2d 1274,
1275 (7th Cir.1985) (applying mass action to when 350,000
to 450,000 coal miners went on strike).
97
See Care One Mgmt., LLC, 2019 WL 5541410, at *6.
26
angry about their working conditions”98 and to take on “more
militant” levels of activity.99 But to satisfy the evidentiary
threshold of Norris-LaGuardia, Care One must present “clear
proof that the particular act charged, or acts generally of that
type and quality, had been expressly authorized, or necessarily
followed from a granted authority.”100 We cannot conclude
that these statements expressly authorized the alleged predicate
acts without greatly weakening the fabric of Norris-LaGuardia
and undermining the congressional intent behind it.
The acts of vandalism, etc., do not “necessarily
follow[]” from these abstract statements.101 Those statements
were in a facilitator lesson-planning worksheet and a written
evaluation for one organizer, respectively.102 Care One also
points to the NEHCEU’s president’s statement to workers that
“the law takes too long” and that NEHCEU “could be
destroyed by the time the law was able to stop [Care One’s]
behavior.”103 Here again, the suggested inference is just too
tenuous a thread to tie the Unions to the acts of vandalism. It
simply does not follow that the Unions were authorizing acts
of vandalism and sabotage by complaining about delays in the
legal process.
Moreover, as the District Court recognized, the
evidence here is to the contrary. Even internally, NEHCEU’s
communications director condemned the behavior. He wrote
to fellow employees stating: “Of course anyone with a pea-
sized brain would realize this isn’t a tactic we would
undertake.”104
Our finding that the evidence could not lead a properly
instructed jury to conclude that the Unions authorized this
conduct is not akin to “nothing to see here; move along,” as our
dissenting colleague suggests. This suggestion coupled with
the assertion that there is “indeed something to see, and a jury
98
JA 5852, a facilitator teaching document with the goal of
“answer[ing] tough questions and redirect[ing] conversations
to an organizing agenda.”
99
JA 5849, a supervisor’s evaluation form for an individual
organizer.
100
United Bhd. of Carpenters, 330 U.S. at 406–07.
101
See id.102
See JA 5852 and 5849.
103
Appellants’ Br. at 22.
104
JA 6825.
27
should see it,”105 makes clear that the Dissent does not fully
appreciate the heightened standard of review required here.
Under this standard of review, a jury may not “see it” if there
is not clear proof. This does not mean we are saying “move
along” (i.e., grant summary judgment) because we are ignoring
the relevant evidence, but rather because, after a careful review
of said evidence, it clearly falls short of the required standard.
Even the Fry v. Airline Pilots Association International
case, which the Dissent relies on when asserting that “‘[c]lear
proof’ is not an unreachable standard,” supports that the
evidence here fails to reach it.106 The Fry Court stressed that
any alleged authorization would have to be “very obvious.”107
For the reasons discussed above, the evidence here is a far cry
from very obviously suggesting authorization. Moreover, Fry
involved much more convincing evidence than we have here.
This included “the words ‘show no mercy’” written on a union
bulletin board with the names of the people some union
members had harassed listed underneath and evidence that the
union chairperson failed “to deny an allegation that ‘Union
Leadership continue[d] to encourage [post-strike harassment]
and refuse[d] to take any steps to stop it.”108 And even with
this clearer evidence, the Tenth Circuit still found that the proof
was not clear enough to get past summary judgment. Compare
this to our case in which we have both vague statements that
do not clearly incite the vandalism as well as the Unions’
explicit condemnation of the vandalism. If the evidence in Fry
falls short of clear proof of authorization requiring granting the
union’s motion for summary judgment, then the evidence here
necessarily falls short of this heightened standard too.
(ii) Ratification
As explained above, even if the Unions did not
authorize this conduct, they are nevertheless liable if they
ratified it. To show ratification, Care One must show “either
that the union approved the violence which occurred, or that it
participated actively or by knowing tolerance in further acts
which were in themselves actionable under state law or
105
Dissent at 26.
106
Id. at 24 (citing Fry v. Airline Pilots Ass’n, Int’l, 88 F.3d
831, 842 (10th Cir. 1996)).
107
Fry, 88 F.3d at 842–43.
108
Id. at 843.
28
intentionally drew upon the previous violence for their
force.”109 In addition, as we have stressed at length, Care One
would need to show “clear proof” of such ratification.110 Care
One argues that union officials made “no concrete effort to
disassociate themselves from the misconduct,”111 and that
apparent lack of concern is itself enough to show ratification.
It cites Yellow Bus Lines to support this contention.112 In
Yellow Bus Lines, there was evidence that the union local’s
business director, James Woodward, had engaged in several
acts of vandalism including threatening to burn company
buses.113 The president of the union received a letter
describing “with particularity ‘numerous incidents of threats,
violence, property damage, and verbal abuse’ by Woodward
and other strike participants.”114 There was no evidence to
show that the unions acted to investigate or discipline
Woodward (or any other strikers). More importantly,
“Woodward remained on-site as the Local’s man in charge.”115
The court held that evidence was sufficient to show that the
union had liability for Woodward’s action because its inaction
after learning of accusations against Woodward ratified his
conduct.116 Clearly, this case is different. Assuming arguendo
that lack of concern constitutes approval, this record does not
support a conclusion that union officials made no concrete
effort to disassociate themselves from the violence.
NEHCEU’s communications director wrote that the
allegations of vandalism were “very serious indeed” and that
those responsible “should be held fully accountable.”117 This
is in direct contrast to the response of the union in Yellow Bus
109
Gibbs, 383 U.S. at 739.
110
29 U.S.C. § 106.
111
Appellants’ Br. at 26.
112
Yellow Bus Lines, Inc. v. Drivers, Chauffeurs & Helpers
Loc. Union 639, 883 F.2d 132, 136 (D.C. Cir. 1989), on reh’g
en banc, 913 F.2d 948 (1990).
113
Id. at 135.
114
Id. at 136.
115
Id.
116
Id.
117
JA 1068.
29
Lines, which was tantamount to the proverbial “wink and a
nod.”118
Care One argues that a reasonable jury could find the
Unions ratified the sabotage after the fact because the Unions
“sought to ‘mudd[y] the waters’ and ‘rebut, or at least confuse,
the sabotage claims’”119 rather than to assist the police
investigation.120 Despite some of the Unions’ rhetoric, it is far
from clear that the Unions sought to “muddy the waters.”
Indeed, the relevant email that Care One’s argument rests on
merely reported results from a response to a FOIA request. It
described the information from that FOIA response as
“mudd[ying] the waters and support[ing] the contentions of the
workers that” the patients may have removed their identifying
bracelets themselves rather than saboteurs.121 Congress gave
unions increased protection from liability by setting a standard
of clear proof.122 No fair reading of the email suggests that the
Unions approved the actions by even the lowest standard of
proof. It therefore certainly does not establish any such
approval by clear proof.
Care One also points to an email suggesting it would be
“a very bad idea” to participate in the police investigation.123
But read in context, that email explains that the Unions should
not “suggest [they] have information [they] don’t have” and
that they have an obligation to their members even if it turned
out the members were guilty.124 Here, it must be remembered
that subsequent investigation yielded no suspects or implicated
any Union members.
118
We realize, of course, that it is certainly possible that any
statements by the Union condemning the vandalism and
sabotage were made solely to provide “cover” and that any
Union members participating in the vandalism understood
that. However, without sufficient proof that statements
condemning the destruction were nothing more than a
disingenuous self-serving response, we cannot attribute such
nefarious motivations to the Unions or their communications.
119
Appellants’ Br. at 25 (citing JA 5842).
120
Id. (citing JA 5831).
121
JA 5842.
122
29 U.S.C. § 106.
123
JA 5831.
124
Id.30
Care One also contends that the Unions went as far as
“authoring a baseless article suggesting that Care One ‘staged
the sabotage to make [NEHCEU] look bad.’”125 However, the
article, written by the Unions’ communications director,
attributes the “staged the sabotage” quotation to members and
indeed members who disbelieved the allegations of
sabotage.126 That is not evidence that the Unions had any such
belief. Moreover, even if we were to attribute such a belief to
the Unions, it would still fall short of the clear proof needed to
allow us to conclude that the Unions ratified the acts of
vandalism and sabotage after the fact.
2. Mail and Wire Fraud
a. Unions’ Fact-Checking Process
Care One asserts claims of mail and wire fraud based on
the allegedly false and misleading advertisements. The District
Court granted summary judgment to the Unions on those
claims because the proof of the requisite element of specific
intent to defraud was lacking.127 It found no specific intent to
deceive because the Unions had fact-checking and vetting
procedures in place, and the people who researched, drafted,
and approved the publications believed the advertisements to
be truthful.128
Care One argues that there were material disputes of
fact as to whether such procedures existed or whether the
procedures were followed if they did exist. After reviewing
the affidavits submitted by both sides on the summary
judgment motions, we hold that the trial court did not err. Care
One argues that UHWE Assistant for Strategic Organizing
Amy Gladstein revealed that the Unions lacked such vetting
procedures, but that is a misreading of the record. Gladstein
merely denied that their protocols were as strict as in “a
laboratory.”129 But she emphasized that the Union researchers
were trained to conduct careful research, and that the
advertisements were based on initial fact gathering.130
125
Appellants’ Br. at 25–26 (citing JA 5825).
126
JA 5825.
127
Care One, 2019 WL 5541410, at *9.
128
Id. at *10.
129
JA 3718–19.
130
JA 7994.
31
Care One also contends that a union employee admitted
that communications were published without approval.
However, that employee merely specified that the procedure
did not require a sign-off by him. In doing so, he reaffirmed
that the work had to be “vetted by the research department for
accuracy.”131 Care One points to a communications employee
who admitted that when she was promoted to a senior position,
she could send out certain things without her supervisor’s
“review,” though there were categories of things that still
required her supervisor’s review.132 None of this contradicts
the process the Unions outlined. This process included fact-
checking and vetting communications and not releasing
anything without approval by an officer or senior staff
employee with authority.133 Care One can point to specific
officers or senior staff who did not do any fact-checking, but
that does not negate the evidence that certain researchers and
outside counsel did fact-check, even if others did not.134 There
is information in the record, for example, that cite-checking
was “Megan [Thorsfeldt’s] job.”135
We have previously affirmed summary judgment
dismissal of a defamation claim where defendants filed
uncontradicted affidavits that “averred that they were
convinced of the truthfulness” of their statements.136 Here, the
Unions’ affidavits provide sufficient evidence that the affiants
believed that all the material in the advertisements was truthful
and accurate. None of the portions of the record Care One
relies on raises a genuine issue of fact sufficient to defeat the
Unions’ motion for summary judgment.
131
JA 2761.
132
JA 5308.
133
JA 7994.
134
See JA 2642 (vetting was conducted on the research side
and legal side); JA 5134 (accuracy was the responsibility of
“our research team” and “counsel”); JA 3718 (Gladstein
explaining that “my researchers” were responsible for
accuracy).
135
JA 5327.
136
Steaks Unlimited, Inc. v. Deaner, 623 F.2d 264, 276 (3d
Cir. 1980).
32
b. Reckless Disregard
Care One claims the District Court should have looked
beyond the fact-checking procedures because fraud “may be
effected by deceitful statements of half-truths or the
concealment of material facts” even if the text is true.137 Care
One then argues that we can find specific intent because
advertisements were “(at best) deceitful half-truths” that
advanced the Unions’ scheme and whose purpose was to “harm
Appellants’ business.”138
Specific intent “may be found from a material
misstatement of fact made with reckless disregard for the
truth.”139 However, reckless disregard for the truth cannot be
inferred merely from an intention to injure.140 It requires
“sufficient evidence to permit the conclusion that the defendant
in fact entertained serious doubts as to the truth of his
publication.”141 Failure to investigate before publishing is not
enough to establish reckless disregard, without more.142
Care One points to specific ads and claims the Unions
cherrypicked facts and disrobed them of their necessary
context. In the four ads in question, Care One accuses the
Unions of asking a leading question that implies a negative
answer and highlights negative information, supported by a
non-representative fact or statistic.
For example, as quoted above, Care One points to the
advertisements targeting its staffing. Those advertisements
ask: “Are HealthBridge Nursing Homes Employing Enough
Caregivers For Our Loved Ones?” They then assert that Care
One provided below-average coverage by certified nursing
assistants.143 The ads omit that Care One facilities provide
137
Appellants’ Br. at 43 (citing United States v. Ferriero, 866
F.3d 107, 120 (3d Cir. 2017) (quoting United States v. Bryant,
655 F.3d 232, 249 (3d Cir. 2011)).
138
Appellants’ Br. at 42.
139
United States v. Coyle, 63 F.3d 1239, 1243 (3d Cir. 1995)
(citation omitted).
140
Harte-Hanks Commc’ns, Inc. v. Connaughton, 491 U.S.
657, 666 n.7 (1989).
141
Id. at 688 (citing St. Amant v. Thompson, 390 U.S. 727,
731 (1968)).
142
Id. (citing St. Amant, 390 U.S. at 733).
143
JA 2491.
33
above-average hours of coverage by the higher-skilled
registered nurses (RNs) and licensed practical nurses
(LPNs).144
However, the law of defamation generally recognizes
that a question, “however embarrassing or unpleasant to its
subject, is not an accusation.”145 To premise liability on a
question would “necessarily ensnare a substantial amount of
speech that is essential to the marketplace of ideas.”146
Moreover, the questions’ implied answer is merely an
unfalsifiable “opinion relating to matters of public concern.”147
Even if the Unions were using the questions to assert that Care
One “understaff[s]” their facilities, that assertion would merely
compare Care One’s staffing to a subjectively chosen correct
number.
The same analysis applies to the other questions in the
Unions’ advertisements: “Is HealthBridge Giving Your Loved
One Anti-Psychotic Drugs?,”148 “Overbilled at a HealthBridge
Nursing Home?,”149 and “Who’s in charge At HealthBridge
Nursing Homes?”150 These are all questions rather than factual
misrepresentations. They point out a presumed disparity
between HealthBridge’s behavior and a subjective standard.
Care One suggests that the statistic in the staffing ad is
fraudulent because it implies that Care One understaffs by
relying on information pertaining to the only category of staff
with below-average numbers. Amanda Torres-Price,
communications specialist for UHWE, conceded that the
advertisements were “not pretending to be objective.”151
However, speakers in the public square “have no legal
obligation to present a balanced view.”152 The Unions had no
144
JA 3348–49 and 5642.
145
Abbas v. Foreign Policy Grp., LLC, 783 F.3d 1328, 1338
(D.C. Cir. 2015) (citation omitted).
146
Id. at 1339.
147
Weyrich v. New Republic, Inc., 235 F.3d 617, 624 (D.C.
Cir. 2001) (citation omitted).
148
JA 2501.
149
JA 2477.
150
JA 2494.
151
JA 5311.
152
Perk v. Reader’s Digest Ass’n, Inc., 931 F.2d 408, 412
(6th Cir. 1991).
34
duty to give a fair, holistic representation in their
advertisements.
The law does not require the Unions to present a
balanced view in their other advertisements. Care One points
out that the antipsychotics advertisements suggesting its
facilities excessively administered medications relies on a
statistic referring to non-representative groups of patients, for
whom the antipsychotic drugs were often medically
appropriate. The overbilling advertisements were based on one
billing error at only one facility. And the “Who’s in charge”
advertisements implied there was an unhealthy amount of
turnover but cited turnover rates roughly in line with a state
average. Care One doesn’t dispute the actual statistics, merely
the implications and the insinuations arising from them. It is
unrealistic to expect that either side of a labor dispute will
present a balanced view in advertisements pertaining to that
dispute. Moreover, for better or worse, the law does not hold
either party to a labor dispute to a given level of objectivity.153
IV.
For the reasons set forth above, we will affirm the
District Court’s judgment.
153
This does not, of course, license either side to a labor
dispute to say whatever will inflict maximum damage on the
other side with absolutely no regard for the accuracy of those
statements. Here, as we have discussed, the Unions did have
processes in place to maintain a level of accuracy in its public
pronouncements. And the record does not support any
conclusion that those processes were little more than a
Potemkin Village intended only to provide cover so that the
Unions could say whatever they thought would damage Care
One. There is no evidence that the Unions had “serious
doubts” about the truthfulness of the statements. Harte-
Hanks Commc’ns, 491 U.S. at 688.
35
Care One v. United HealthCare, No. 19-3693
JORDAN, Circuit Judge, dissenting
Congress has indeed provided a wide playing field for
unions and businesses to engage in the rough and tumble of
collective bargaining. But that field still has limits. I
respectfully dissent because the Majority Opinion in this case
dismisses troubling evidence of extortionate threats by the
defendant Unions.1 According to the Unions and my
colleagues in the Majority, even threats of criminal prosecution
and crippling regulatory obstruction are simply hard
bargaining, as long as they’re pressed by labor unions, and any
question of whether the Unions actually authorized or ratified
acts of violent sabotage is too weak to go to a jury. I think the
case presents some close questions but there is enough to give
the plaintiff, Care One, its day in court.2 I would therefore
vacate the District Court’s judgment and remand for trial.
I. Labor unions are not immune from RICO liability
predicated on violations of state laws against
extortion.
Because Care One’s RICO claims rely on predicate acts
of “extortion … chargeable under State law[,]” 18 U.S.C.
§ 1961(1)(A), Care One must show that the alleged predicate
acts both violate a state extortion law and satisfy the “generic”
definition of extortion as interpreted in federal case law.
1
I refer to the defendants collectively as the “Unions,”
and, when speaking of one of them, use the singular, “Union.”
2
Like the Majority, I refer to the various plaintiffs in the
singular as “Care One.”
United States v. Kirsch, 903 F.3d 213, 225 (2d Cir. 2018). As
to the first showing, Care One has described in its complaint
several extortion offenses violative of Connecticut,
Massachusetts, and New Jersey statutes. Unlike the federal
Hobbs Act, those state laws list specific things that amount to
extortion, including threats of criminal prosecution or
regulatory obstruction.3 Also unlike the Hobbs Act as it is
interpreted by the Majority, none of those state laws creates a
categorical allowance for labor unions to engage in
extortionate behavior.4 It seems clear to me that Care One has
3
Under Connecticut law, extortion includes, among
other conduct, “compel[ling] or induc[ing] another person to
deliver … property to himself or a third person by means of
instilling in him a fear that, if the property is not so delivered,
the actor or another will … accuse some person of a crime or
cause criminal charges to be instituted against him[.]” Conn.
Gen. Stat. § 53a-119(5)(D). Under Massachusetts law,
extortion includes, among other acts, “malicious[ ] threat[s] to
accuse another of a crime or offence … with intent thereby to
extort money or any pecuniary advantage[.]” Mass. Gen. Laws
ch. 265, § 25. Under New Jersey law, extortion includes,
among other conduct, “purposely and unlawfully obtain[ing]
property of another” by threatening to “[a]ccuse anyone of an
offense or cause charges of an offense to be instituted against
any person” or to “cause an official to take or withhold
action[.]” N.J. Stat. § 2C:20-5(b), (d).
4
Although the statutes in Connecticut and New Jersey
exempt labor action “for the benefit of the group in whose
interest the actor purports to act[,]” those exemptions apply
only to strikes, boycotts, and related collective actions, not
threats of criminal prosecution and regulatory obstruction.
2
shown the predicate acts it alleges as support for its RICO
claim do indeed constitute extortion under state law.
The issue, then, is whether Care One has made the
second necessary showing: that the Unions’ conduct is
“capable of being generically classified as extortionate.”
Scheidler v. Nat’l Org. for Women, Inc., 537 U.S. 393, 409
(2003). More precisely, the question is whether the Unions’
conduct fits the generic definition of “extortion … chargeable
under State law[,]” which is the phrase that appears in RICO.
18 U.S.C. § 1961(1)(A). While at first glance it may seem
paradoxical, the question of what constitutes generic extortion
under state law is not, in this context, a matter of state law. It
is, instead, a matter of federal law under the RICO statute. See,
e.g., United States v. Forsythe, 560 F.2d 1127, 1135 (3d Cir.
1977) (“State law offenses are not the gravamen of RICO
offenses. … To interpret state law offenses to have more than
a definitional purpose would be contrary to the legislative
intent of Congress and existing state law.”). The Majority
equates the generic definition thus developed with the
Conn. Gen. Stat. § 53a-119(5)(F); N.J. Stat. § 2C:20-5(e); see
also United States v. Kirsch, 903 F.3d 213, 224 (2d Cir. 2018)
(reading identical labor exemption to apply only to specific
labor action discussed in same subsection, not other
enumerated acts of extortion in other subsections). The Model
Penal Code appears to operate in the same way. Model Penal
Code § 223.4 cmt. (2)(i) (Am. Law Inst. 1980) (“Paragraph (5)
reaches the threat of collective unofficial sanctions where, for
example, an official of a trade association or union is lining his
own pocket by employing the coercive power that he is
supposed to wield on behalf of his organization.”).
3
definition of extortion found in the Hobbs Act, 18 U.S.C.
§ 1951(b)(2), and so it trains its attention exclusively on that.
(Maj. Op. at 11-13.) But granting the Majority is correct that
the Hobbs Act’s definition of extortion closely tracks the
Supreme Court’s formulation of generic extortion in RICO,5
there is still good reason to understand the two definitions
differently.
As the Majority points out (Maj. Op. at 13-14), the
Supreme Court gave a narrow interpretation to the meaning of
extortion under the Hobbs Act in United States v. Enmons, 410
U.S. 396 (1973). The Court there focused on the particular
wording of the Hobbs Act and held that the word
“‘wrongful’ … limits the statute’s coverage to those instances
where the obtaining of the property would itself be ‘wrongful’
because the alleged extortionist has no lawful claim to that
property”; otherwise, the term “wrongful” would be redundant
since resort to violence is wrongful in itself. Id. at 399-400;
see 18 U.S.C. § 1951(b)(2). The Court also relied heavily on
legislative history, which the Court read as revealing a
congressional intent to steer the statute’s sanctions away from
legitimate labor activity. See Enmons, 410 U.S. at 401-08.
5
Compare 18 U.S.C. § 1951(b)(2) (“obtaining of
property from another, with his consent, induced by wrongful
use of actual or threatened force, violence, or fear, or under
color of official right”), with Scheidler v. Nat’l Org. for
Women, Inc., 537 U.S. 393, 409 (2003) (“obtaining something
of value from another with his consent induced by the wrongful
use of force, fear, or threats”). See also United Bhd. of
Carpenters v. Bldg. & Const. Trades Dep’t, 770 F.3d 834, 843-
44 (9th Cir. 2014) (interpreting terms similarly).
4
The wording chosen by states to outlaw extortion does
not necessarily track the wording of the Hobbs Act, and the
linguistic parsing in Enmons is thus not obviously applicable.6
Nor is there any legislative history behind state laws that
would – as was true with the Hobbs Act – narrow the meaning
of “extortion … chargeable under State law” as a RICO
predicate. 18 U.S.C. § 1961(1)(A). And no authority has been
offered to suggest that, outside of the Hobbs Act as narrowly
interpreted by Enmons, laws against extortion have ever been
generally understood to be inapplicable to labor unions. Cf.
Alice Kramer Griep, Comment, A Study of Statutory Blackmail
and Extortion in the Several States, 44 Mich. L. Rev. 461(1945) (surveying state extortion statutes and the history of
statutory expansion beyond the common law crime of unlawful
takings by public officials, without any mention of labor
6
My colleagues in the Majority fault me for not giving
a case citation for this proposition. (Maj. Op. at 12 n.43.) I
don’t believe, however, that a case is needed to demonstrate
that state laws define as extortion precisely the things the
Majority excuses here, see supra note 3, or that the Supreme
Court’s effort to excise “wrongful” as redundant in the Hobbs
Act is peculiar to that statute and the labor-violence context in
which the Enmons decision arose.
5
unions);7 3 Wayne R. LaFave, Substantive Criminal Law
§ 20.4(a) (3d ed. 2018) (same).8
7
According to the Majority, “[e]ven a cursory look at
this article reveals that it does not actually support the stated
assertion” that there is a lack of authority, outside of Enmons’s
interpretation of the Hobbs Act, supporting a labor exemption
to extortion laws. (Maj. Op. at 12 n.43.) I will let readers
decide whether the article notes special treatment for labor
unions – or mentions labor unions at all. (Spoiler alert: it does
not.) At any rate, the point I make is straightforward and
should not be controversial: apart from and prior to Enmons’s
interpretation of the Hobbs Act, no one ever thought that labor
unions got an exemption from laws against extortion that apply
to everyone else. A law review article published before
Enmons is perfectly capable of supporting that proposition, and
I have found no authorities between the time of that article’s
publication and the publication of Enmons suggesting the rise
of a labor-union distinction in federal or state laws forbidding
extortion. That the article declines to address certain types of
threats traditionally considered to be outside of extortion law –
“threats which are punishable even though no property is
demanded” (Maj. Op. at 13 n.43 (citing Alice Kramer Griep,
Comment, A Study of Statutory Blackmail and Extortion in the
Several States, 44 Mich. L. Rev. 461, 462 (1945))) – says
nothing about a labor exemption from extortion laws.
8
As more fully discussed below, even when interpreting
the Hobbs Act, we have not understood Enmons as giving a
pass to unions for every kind of extortionate behavior. Rather,
we have joined other courts of appeals in observing that
Enmons pertains to the use of force during labor disputes. See
United States v. Agnes, 753 F.2d 293, 298 (3d Cir. 1985)
6
If the “generic” brand of “extortion … chargeable under
State law” as a RICO predicate is in fact something different
than Hobbs Act extortion, then any discussion here of the
Hobbs Act’s definition of “extortion” is perhaps academic.
But even if, as the Majority assumes, the meaning of
“extortion” is identical in both contexts, I still do not agree with
my colleagues that the claim-of-right defense under the Hobbs
Act extends to the alleged conduct of the Unions, for the
reasons I turn to next.
(interpreting Enmons to hold that “Congress expressly declared
its intent to exclude labor violence from coverage of the Hobbs
Act”), abrogated on other grounds by Smith v. Borough of
Wilkinsburg, 147 F.3d 272 (3d Cir. 1998); see also, e.g., Levitt
v. Yelp! Inc., 765 F.3d 1123, 1131 (9th Cir. 2014) (reviewing
case law reading “Enmons as holding only that the use of
violence to secure legitimate collective bargaining objectives
is beyond the reach of the Hobbs Act”); United States v.
Robilotto, 828 F.2d 940, 945 (2d Cir. 1987) (“The Court held
that, in a labor context, the Hobbs Act ‘does not apply to the
use of force to achieve legitimate labor ends.’” (quoting United
States v. Enmons, 410 U.S. 396, 401 (1973))); United States v.
Castor, 937 F.2d 293, 299 (7th Cir. 1991) (“Whatever the
contours of [the claim-of-right] defense may be, they do not
reach extortions based on threats of physical violence outside
the labor context.”); United States v. Debs, 949 F.2d 199, 201
(6th Cir. 1991) (“Enmons has not been extended beyond its
own facts.”).
7
II. The claim-of-right defense does not protect every
means of economic pressure.
The claim-of-right defense to a charge of extortion has
two distinct requirements: the defendant must have the right to
pursue a particular objective and the right to use the particular
means it has chosen for that pursuit. For the defense to be
operative, both requirements must be met. See United States
v. Cerilli, 603 F.2d 415, 419-20 (3d Cir. 1979) (“The receipt of
money … is generally not inherently wrongful. The wrong
under the Hobbs Act is the manner in which it is obtained.”);
United States v. Clemente, 640 F.2d 1069, 1077 (2d Cir. 1981)
(“In Cerilli, … the Third Circuit determined that the ‘manner’
in which the property is obtained has a bearing on whether the
objective, ‘obtaining the property from another,’ is legitimate.
In other words, the Third Circuit declined to evaluate the
‘objective’ of the defendants in a vacuum, independent of the
conduct involved.”). That two-part rule extends even to the
pursuit of what is lawfully one’s own, so, for example,
extortion includes threats of violence in the collection of a debt.
See United States v. Nakaladski, 481 F.2d 289, 298 (5th Cir.
1973) (upholding jury finding that defendants participated in
threats of violence to collect loan payments). Thus, I disagree
with the Majority’s conclusion that there is simply no limit to
the means that a union can employ to pursue a legitimate
objective. (See Maj. Op. at 21 (“[A]s long as unions pursue
legitimate labor objectives, their coercive tactics are simply not
subject to liability under the Hobbs Act.”).) While my
colleagues assert that “[l]abor is simply different” from every
other participant in our society (Maj. Op. at 21), it is not so
different that, when it comes to the Hobbs Act, all criminality
is excused.
8
My colleagues believe that their anything-goes-for-
unions variation on the claim-of-right defense is supported by
the Supreme Court’s decision in Enmons, 410 U.S. 396, and by
our decision in Brokerage Concepts, Inc. v. U.S. Healthcare,
Inc., 140 F.3d 494 (3d Cir. 1998). (Maj. Op. at 13-16.) But
Brokerage Concepts does not expand on the narrow and
specific holding in Enmons that I have already described, see
supra note 8 and related text, and it certainly does not “rel[y]
on Enmons’s reasoning to cross-apply the claim-of-right
defense” (Maj. Op. at 17 n.61). On the contrary, we expressly
noted in Brokerage Concepts that the facts we faced there were
not like those in Enmons. Brokerage Concepts, 140 F.3d at
523. The difference was that Brokerage Concepts “solely
involve[d] the accusation of the wrongful use of the fear of
economic loss[,]” rather than the fear of labor violence. Id.
And we went on to consider what kinds of economic threats
could be “wrongful[,]” without any regard to whether or not
the threats arose in the labor context. Id. at 523-24. Nothing
in Brokerage Concepts or any other case cited by the Majority
creates a special immunity for labor unions to extort business
concessions through economic fear.
And for good reason. The holding in Enmons was
pinned to a particular reading of the Hobbs Act that, again,
focused on the specific wording of the Act and the idea that
violence is inherently “wrongful.” Id. at 522. That is, the
Court in Enmons made clear that “it would be redundant to
speak of ‘wrongful violence’ or ‘wrongful force’ since … any
violence or force to obtain property is ‘wrongful.’” 410 U.S.
at 399-400. In Brokerage Concepts, however, we observed
that “the use of economic fear in business negotiations … is
not ‘inherently’ wrongful.” 140 F.3d at 523 (emphasis added)
(citing United States v. Sturm, 870 F.2d 769, 773 (1st Cir.
9
1989)). Accordingly, the word “wrongful” is not redundant in
the Hobbs Act when modifying a means of obtaining property
through economic fear, rather than through violence and force.
Id. at 522-23; Sturm, 870 F.2d at 772-73. And because the
word “wrongful” is not redundant in that context, there remains
“the possibility that the use of wrongful economic threats to
obtain property to which the defendant is legally entitled may
[indeed] be prosecutable as extortion under the Hobbs Act.”
Sturm, 870 F.2d at 773; Brokerage Concepts, 140 F.3d at 523-
24.9
I take our observation in Brokerage Concepts that
economic fear differs fundamentally from force to reflect an
understanding that the holding in Enmons – which is limited to
the use of “force or violence to obtain property [in] the labor
context[,]” Brokerage Concepts, 140 F.3d at 523 – does not
9
Again, Brokerage Concepts did not rely on Enmons’s
reasoning – which was supported by a unique textual analysis
and a specific legislative history – and it also did not, as the
Majority implies (Maj. Op. at 17 n.61), abrogate cases
discussing how Enmons is limited to “labor violence[.]”
Agnes, 753 F.2d at 298; Cerilli, 603 F.2d at 420. Indeed, more
recent cases continue to observe the limited applicability of
Enmons. See United States v. White, 810 F.3d 212, 224 (4th
Cir. 2016) (“[O]utside the context of labor relations, the ‘claim
of right’ defense is inapplicable in Hobbs Act cases involving
the use or threatened use of violence.” (footnote omitted));
United States v. Daane, 475 F.3d 1114, 1119 (9th Cir. 2007)
(following Ninth Circuit precedent reading Enmons as
applying only to the use of violence to secure legitimate
collective bargaining objectives).
10
give unions a free pass on all manner of extortion.10 Although
the Majority may find that conclusion “bizarre” (Maj. Op. at
16), it is justifiable and is, in fact, justified by our own case
law. See United States v. Agnes, 753 F.2d 293, 298 (3d Cir.
1985) (interpreting Enmons to hold that “Congress expressly
declared its intent to exclude labor violence from coverage of
the Hobbs Act” (emphasis added)), abrogated on other
grounds by Smith v. Borough of Wilkinsburg, 147 F.3d 272 (3d
Cir. 1998).11 And we are not alone. See United States v. Debs,
10
In arguing from Enmons and our cases interpreting it,
I make no distinction, as the Majority thinks I do (Maj. Op. at
15 & n.54, 17, 19), between conduct during strikes and conduct
during other labor negotiation activities. My colleagues also
say, at one point, that I “manifest[ ] an unwillingness to
concede the reality of labor strife and the pressures surrounding
it” (Maj. Op. at 16), and, at another point, that I am confused
about “whether Enmons applies to non-violent labor actions.”
(Maj. Op. at 20.) I can only respond that I certainly do
recognize the reality that there is labor strife and that there are
real and serious pressures surrounding it, but I do not read the
case law as giving one side free reign to abuse the other.
(Recall that we are bound at this juncture in the case to take the
evidence in the light most favorable to Care One.) Nor am I
confused about Enmons. I simply disagree with my
colleagues’ assertion that “[t]he caselaw cannot fairly be read
to foreclose the application of Enmons to non-violent [labor]
actions[.]” (Maj. Op. at 20.)
11
The Majority, meanwhile, must rely exclusively on
other courts of appeals to support its position “that Enmons’s
11
949 F.2d 199, 201 (6th Cir. 1991) (declining to “hold that
because some illegality in union activity is justifiable every
illegality, including extortion, must also be within the orbit of
Enmons[,]” which “would immunize union members from
sanction so long as their otherwise illegal action is committed
in the context of labor activity”); 86 C.J.S. Threats § 33 (2017)
(“[T]he Act’s exception for the use of force to achieve
legitimate labor ends does not apply to immunize union
members from sanction for all labor-related illegal actions.”).
And limiting Enmons to the labor-violence context does not, as
the Majority implies, create any perverse incentives for unions
to resort to “more militant tactics” (Maj. Op. at 16), because
there are other legal limits on violent conduct.12 See United
States v. Mulder, 273 F.3d 91, 104 (2d Cir. 2001) (approving
jury instruction on labor exception to Hobbs Act, where the
instruction explained that the “exception does not imply that
violence is lawful or proper in general[; o]bviously, it is
holding is generally applicable to labor-management
conflicts[,]” not just labor violence. (Maj. Op. at 16-18.)
12
E.g., Conn. Gen. Stat. § 53a-60(a) (criminalizing as
second degree assault when someone, “[w]ith intent to cause
serious physical injury to another person, … causes such injury
to such person or to a third person”); Commonwealth v. Dorvil,
32 N.E.3d 861, 866 (Mass. 2015) (defining “assault and
battery” as “the intentional and unjustified use of force upon
the person of another, however slight”); N.J. Stat. § 2C:12-1(1)
(criminalizing as assault when someone “[a]ttempts to cause or
purposely, knowingly or recklessly causes bodily injury to
another”).
12
not”).13 Unlike my colleagues, I’m confident that union
leaders are smart enough to avoid concluding, “If we can’t
extort management with wrongful threats of criminal
prosecution and regulatory holdups, let’s just shoot them.”
Accordingly, I would not ignore, as the Majority does,
our cases addressing the extortionate use of economic fear,
simply because the alleged extortionist is a labor union. In
those cases, we considered the means pursued when we were
judging entitlement to the claim-of-right defense. In
Brokerage Concepts, for example, we asked “whether the
defendants’ use of economic fear in the context of hard
business bargaining constitutes wrongful conduct amounting
to extortion for civil RICO purposes[.]” 140 F.3d at 501. The
defendant in that case conditioned its approval of a pharmacy’s
admission into the defendant’s health insurance network on the
pharmacy’s discontinuation of its contract with a consultant,
the plaintiff. Id. The pharmacy acceded, so the consultant
13
The Majority correctly notes that in United States v.
Mulder, 273 F.3d 91 (2d Cir. 2001), certain jury instructions –
including those proposed by the parties and those ultimately
used by the court – were “correct[,]” but the Majority then
focuses only on the facts of that case, in which the union
defendants threatened both slowdowns and violence to secure
“no-show jobs[.]” Id. at 98-99. (Maj. Op. at 15 n.55.) The
Majority omits the court’s discussion of what made certain
instructions “correct.” Among the “legally correct” proposed
instructions was one that “may have helped the jury better
understand the counter-intuitive proposition that the use of
violence in a labor dispute does not violate the Hobbs Act.”
Mulder, 273 F.3d at 105 (emphasis added).
13
sued. “[W]e conclude[d] that [the plaintiff’s] extortion claim
can only survive if [the pharmacy] had a right to pursue its
business interests free of the fear that it would be excluded
from [the defendant’s] provider network.” Id. at 503. We thus
explicitly undertook to consider the lawfulness of the
defendant insurance company’s use of economic leverage, the
refusal to deal, not just its objective of ending the contract. See
also United States v. Tobin, 155 F.3d 636, 640-41 (3d Cir.
1998) (addressing threats of unrelated lawsuits and bad
publicity from an individual angry at not being hired); Cerilli,
603 F.2d at 418 (addressing the government’s leasing of
equipment conditioned on lessors’ political payments).
I do, of course, agree that the Unions here had every
right to pursue favorable terms in a collective bargaining
agreement. That is a perfectly lawful objective, and they were
entitled to pursue it aggressively, including with a strike, which
naturally threatens economic loss to the business owner. By
definition, as my colleagues note, “[t]he underlying purpose of
a strike … is … to exert such economic loss (or threat of loss)
upon [a] business that the employer agrees to labor’s
demands.” (Maj. Op. at 21.) But that does not mean that
everything that threatens economic loss is merely hard
bargaining. From the proposition that some means of
economic pressure are proper, it does not follow that all means
of economic pressure are proper. It is likewise fallacious to
assert, as the Majority does, that unions are categorically
shielded from Hobbs Act liability for every kind of economic
coercion they may employ. (Maj. Op. at 18.)
Imagine, for instance, that in pursuit of employment, an
individual threatens an employer with financial ruin via a
never-ending campaign of sham civil litigation, unless she is
14
hired. The Majority seems to agree that the threat would go
beyond mere hard bargaining protected by a claim-of-right
defense. (Maj. Op. at 20 n.69.) Indeed, we dealt with that
precise scenario in United States v. Tobin, 155 F.3d 636 (3d
Cir. 1998), denying a claim-of-right defense when the
defendant, who was denied employment, “threatened unrelated
lawsuits alleging sexual harassment” instead of “legal action to
enforce the oral contract that she claimed existed.” Id. at 640.
Now imagine the same scenario, except the threat comes from
a union official on behalf of the individual seeking
employment and is backed by the union’s vastly larger
litigation budget. Suddenly, according to the Majority, the
threats are shielded from Hobbs Act liability. (Maj. Op. at 18.)
That cannot be.
The question, then, is whether the Unions used lawful
means to obtain their legitimate end.14 A sound test for
14
I am assuming here that the Unions’ objective really
was legitimate. There is evidence in this record from which
one could conclude that even that is not so. For the Unions,
achieving a collective bargaining agreement may have taken
second place to using Care One as an example of what will
happen to a business if it has the temerity to push back on labor
demands. Since the Unions arguably selected Care One as a
target for union activity because they thought Care One would
be susceptible to threats of criminal prosecution (see J.A. at
2347 (identifying Care One as among “potential campaign
targets”)), it is not farfetched to believe that reaching an
agreement was not the Unions’ primary objective; publicly
pounding a business and its owner was. That is certainly what
Care One believes. (See Reply Br. at 11 (quoting testimony
that the Unions’ objective was to “bring [Care One] to [its]
15
assessing the lawfulness of the means, and thus the availability
of a claim-of-right defense, is to ask whether there is a
reasonably close relationship – a nexus – between a proper
claim and the threatened harm. Without such a nexus, the
lawfulness of the means is suspect. See United States v.
Jackson, 180 F.3d 55, 70 (2d Cir.) (“We do … view as
inherently wrongful the type of threat to reputation that has no
nexus to a claim of right.”), rev’d on reh’g on other grounds,
196 F.3d 383 (2d Cir. 1999); United States v. Villalobos, 748
F.3d 953, 959 (9th Cir. 2014) (Watford, J., concurring in the
judgment) (concluding that the claim-of-right defense was
inapplicable because “no nexus existed between the threat [of
testifying in a criminal prosecution] and the property
demanded”). Requiring a nexus eliminates a safe haven for
threats of a collateral nature. People generally recognize that
individuals have a right to withhold their labor while
negotiating about the value of it. Threatening to fabricate a
criminal charge against a negotiating counterparty is, by
contrast, not something reasonably related to a labor
negotiation and would not likely be seen as such by anyone
with a sense of simple justice or a passing familiarity with state
extortion laws.
Applying the reasonable-nexus test here, I would hold
that Care One has presented serious evidence that the Unions’
threats of criminal prosecution and regulatory obstruction
lacked any justifiable nexus to their ongoing labor
knees” (second alteration in original)).) But, for the sake of
argument, I take it that a legitimate objective was what the
Unions were driving at.
16
negotiations.15 Taking the view most favorable to Care One,
as we must,16 a jury could rightly say that the threats exceed
what we’ve called “hard bargaining.” Brokerage Concepts,
140 F.3d at 522. As already noted, we addressed in Brokerage
Concepts a threatened refusal to deal, where two private parties
were engaged in discussion over a mutually beneficial
exchange. Id. at 503. That is a world apart from threatening
to engage the power of the state to destroy a business that won’t
capitulate to a negotiating partner’s demands. Federal courts
have repeatedly recognized the potentially extortionate nature
of holding up regulatory approvals or invoking criminal
15
If the Unions had threatened regulatory or criminal
pressure that was directly related to their working conditions
or CBA, for example threatening to file a legitimate complaint
with the National Labor Relations Board, then summary
judgment might well have been appropriate. Here, however,
the nexus between threat and objective appears untenable. As
discussed herein, infra Section III, Care One presents evidence
that the Unions threatened criminal prosecution and regulatory
obstruction in areas that were unrelated to their working
conditions, including Care One’s Medicare billing practices
and infrastructure investment.
16
In evaluating the Unions’ motion for summary
judgment, we must determine whether there are any genuine
disputes of material fact, and if not, we view the evidence in
the light most favorable to Care One and decide whether the
Unions are entitled to judgment as a matter of law. Fed. R.
Civ. P. 56; Scott v. Harris, 550 U.S. 372, 380 (2007); Celotex
Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986).
17
investigations,17 and well-established law elsewhere confirms
that threats to report a crime18 or to manipulate regulatory
17
See, e.g., United States v. Williams, 952 F.2d 1504,
1514 (6th Cir. 1991) (“In this case, defendant’s exploitation of
the victims’ fears was based on the implied threat that, unless
payments were forthcoming, rezoning would never take place,
and the victims would suffer a devastating economic loss.”);
United States v. Zappola, 677 F.2d 264, 269 (2d Cir. 1982)
(“Congress meant to punish as extortion any effort to obtain
property by inherently wrongful means, such as force or threats
of force or criminal prosecution, regardless of the defendant’s
claim of right to the property.”); United States v. Pranno, 385
F.2d 387, 389 (7th Cir. 1967) (upholding Hobbs Act extortion
conviction for conduct “threatening … that [a] building permit
would not be issued”); United States v. Edwards, 324 F. Supp.
2d 10, 13 (D.D.C. 2004) (in denying motion for acquittal,
noting that indictment charged the defendant for extortion
because he, among other things, “caus[ed the victim] to
encounter oversight and regulatory problems”).
18
See, e.g., Conn. Gen. Stat. § 53a-119(5) (“A person
obtains property by extortion when he compels or induces
another person to deliver such property to himself or a third
person by means of instilling in him a fear that, if the property
is not so delivered, the actor or another will … accuse some
person of a crime or cause criminal charges to be instituted
against him[.]”); Flatley v. Mauro, 139 P.3d 2, 22-23 (Cal.
2006) (concluding that certain threats to accuse the plaintiff of
committing crimes “constitute criminal extortion as a matter of
law”); People v. Watson, 11 N.W.2d 926, 928 (Mich. 1943)
(interpreting extortion statute as “cover[ing] a threat merely to
publicly accuse another of a crime”); O’Neil v. State, 296 N.W.
18authorities19 can constitute extortion. Threats like that fit the
definition of extortion because victims have “a legal
entitlement to be … free of the fear” so engendered. Id.Rather than categorically exempting such behavior
from liability, we ought to be directing the District Court to
send to a jury the question of whether the Unions here
wrongfully exploited threats of regulatory obstruction and
criminal prosecution and so, in a manner that constitutes
extortion, brought to bear the power of government to grind
down a business in the midst of labor negotiations.
III. The Unions threatened to continue leveraging
criminal and regulatory pressure points unless their
economic demands were met.
The District Court concluded that Care One presented
no evidence of threats, and the Majority does not take issue
with that conclusion. I would hold that the District Court erred
96, 100 (Wis. 1941) (rejecting proposition that “maliciously
threaten[ing] to accuse the wrongdoer of the crime with the
intent thereby to extort money from him” was lawful);
McKenzie v. State, 204 N.W. 60, 63 (Neb. 1925) (discussing a
statute “mak[ing] it unlawful to maliciously threaten to accuse
another of a crime … done with intent to extort from or to
compel action against the will of the person so threatened”).
19
See N.J. Stat. § 2C:20-5(d) (“A person extorts if he
purposely threatens to … cause an official to take or withhold
action[.]”); Model Penal Code § 223.4 (requiring the
perpetrator to obtain property by “threatening” to, among other
things, “cause an official to take or withhold action”).
19
because Care One certainly did present evidence from which a
jury could reasonably conclude that the Unions threatened to
continue their campaign of impugning Care One to law
enforcement and regulatory authorities, unless Care One met
the Unions’ collective bargaining demands.
First, the record supports an inference that the Unions
threatened a criminal investigation. That may not be the only
possible conclusion on this record, but it is a rational one and
would be supported by clear proof.20 In 2009, the Service
Employees International Union “assess[ed] [Care One
facilities] as potential campaign targets” to extract labor
concessions because data mining revealed the possibility of
Medicare fraud. (Joint Appendix (“J.A.”) at 2347.) In other
20
In the Norris-LaGuardia Act, Congress provided
special protections to unions and their members when it comes
to litigation involving labor disputes, including the protection
of a heightened burden of proof. United Bhd. of Carpenters v.
United States, 330 U.S. 395, 401-03 (1947). Section 6 of that
Act provides:
No officer or member of any association or
organization, and no association or organization
participating or interested in a labor dispute,
shall be held responsible or liable in any court of
the United States for the unlawful acts of
individual officers, members, or agents, except
upon clear proof of actual participation in, or
actual authorization of, such acts, or of
ratification of such acts after actual knowledge
thereof.
29 U.S.C. § 106.
20
words, there is reason to believe that, since before the start of
contract negotiations, the Unions had planned on using
allegations of Medicare fraud for leverage against Care One.
And there is substantial evidence that Care One was both meant
to understand and in fact did understand that such allegations
were being used as negotiating leverage. (See J.A. at 3697-98
(Union attorney confirming that request to investigate
Medicare fraud “was one of the leverage points”), 4400 (Care
One representative testifying that after seeing letter alleging
questionable Medicare billing practices, he understood the
“message [to be] that, this is what’s coming unless you agree
to … their demands”).) Care One representatives were told
that they would be driven out of business in Connecticut unless
collective bargaining demands were met.21 A Union
representative hedged a bit but affirmed he had essentially said
just that. (See J.A. at 4892 (“I may have” said “something
along [the] lines” of “HealthBridge needed to agree to [the
collective bargaining] agreement and increase payments into
21
(See J.A. at 4374 (“[I]f we didn’t do what he wanted
then he is going to look to get rid of our businesses” because
“we understood the relationship with the [Union] and the
politicians in Connecticut and we understood that the [Union]
had the ability to have the politicians create issues for us.”),
4178 (“I don’t remember exactly how he phrased it, but the gist
of what he said was we need these contracts, if you can’t do it,
we will help you find somebody who can buy these places that
can do it, and you just can get out of Connecticut.”), 4373 (“I
remember that [a Union representative] essentially said that if,
if we didn’t agree to the pattern contract that, you know, we’d
have to leave the State of Connecticut or he would drive us out
of the State of Connecticut or something like that.”).)
21
the pension plan, otherwise it would need to leave the state of
Connecticut[.]”).) Eventually, the Unions solicited a letter
from United States Senator Richard Blumenthal to the
Department of Justice suggesting that it pursue a criminal
investigation against Care One. The Unions then ensured that
a copy of that letter was delivered to Care One.
There is also ample evidence that the Unions’
regulatory petitioning was undertaken in service of their labor
negotiations. After Care One filed with the Massachusetts
Public Health Council a Determination of Need Application,
seeking to spend more than four million dollars on a
“[s]ubstantial renovation of [a] skilled nursing facility” (J.A. at
2552), an affiliate of the Unions filed an opposition and
requested a public hearing. At that hearing (nearly a year
later), two Union members opposed the renovations,
“alleg[ing] that they had been wrongfully dismissed from their
longstanding jobs because of their support for the formation of
a union at the nursing home.” (J.A. at 2557.) The opposition
was obviously unrelated to the nature of the hearing, and the
regulator concluded as much. (See J.A. at 2557 (“Staff did not
find these comments to be pertinent to … [the government’s]
regulatory authority in its review of this application.”).)
During a deposition, a Union official acknowledged that their
opposition “was for an objective other than blocking the
repairs[.]” (J.A. at 3382.)
The following year, the Unions similarly opposed an
application by Care One to close a facility in Connecticut. A
Union official stated in an internal email that the opposition
“really has little to do with the closure issue, we just want to
go after the people who are going after us.” (J.A. at 2546.)
Care One asserts that the Unions’ opposition resulted in a six-
22
month delay of the closure. The entirety of the Unions’
pressure campaign should be viewed in the aggregate. See
Tobin, 155 F.3d at 640-41 (considering defendant’s various
“actions [that] went far beyond” hard bargaining). From that
perspective, a jury could find that the threat of regulatory
holdup in the Connecticut proceeding was apparent from the
whole of the Unions’ behavior during the negotiations. See
Nakaladski, 481 F.2d at 298 (holding that evidence
demonstrating history of extortionate extensions of credit
supported the finding that later extensions were also intended
to be extortionate).
The District Court adopted too narrow an understanding
of what can constitute extortionate behavior, and so has the
Majority. There is evidence showing that the Unions
threatened Care One with criminal investigation and caused
baseless regulatory holdups. In light of that evidence – which,
as just described, includes the Senator Blumenthal letter and
the Massachusetts and Connecticut regulatory oppositions – I
would say there is enough to submit to a jury the question of
whether there is clear proof that extortionate threats actually
occurred.
IV. Whether the Unions authorized or ratified the July
2nd sabotage should be put to a jury.
As the Majority rightly concludes, a jury could infer that
Union workers committed acts of sabotage against Care One.
(Maj. Op. at 21-22.) Unlike the Majority, however, I think a
reasonable and properly instructed jury could also infer from
the Unions’ prior statements, from the coordinated timing of
the sabotage, and from the subsequent obfuscation by the
Unions, that they authorized or ratified those acts. In other
23
words, a reasonable jury could find that Care One’s evidence
meets the “clear proof” evidentiary burden required by Section
6 of the Norris-LaGuardia Act.22 “Clear proof” is not an
unreachable standard. See, e.g., Yellow Bus Lines, Inc. v.
Drivers Local Union 639, 883 F.2d 132, 136 (D.C. Cir. 1989)
(concluding “that a reasonable jury could have found ‘clear
proof’ of union ratification or authorization[,]” which a union
can accomplish “without going so far as to openly encourage
or embrace the tactics” deployed by members); see also Fry v.
Airline Pilots Ass’n, Int’l, 88 F.3d 831, 842 (10th Cir. 1996)
(“allowing a case-by-case determination based on the unique
facts of each case” because “[t]he terms ‘participation,’
‘authorization,’ and ‘ratification’ are fact based”). It does not
mean proof beyond a reasonable doubt. I understand it to be
something akin to the familiar standard of “clear and
convincing evidence,” and there is enough here that a jury
should have a chance to consider the evidence.
On July 2, 2012, the night before multiple Union-
organized strikes were scheduled to begin, acts of sabotage
took place simultaneously at three Care One facilities. There
is evidence that, in advance of that sabotage, the Unions
engaged in inflammatory rhetoric and encouraged labor
organizers to spark “greater and more militant levels of
activity.” (J.A. at 5849.) The president of one of the Unions
told workers that “the law takes too long” and that his Union
“could be destroyed by the time the law was able to stop [Care
One’s] behavior.” (Opening Br. at 22 (alteration in original)
(quoting Defs. S.J. Reply at 5).) I think a jury could reasonably
see those communications and the multiple, simultaneous acts
22
See supra note 20.
24
of sabotage that immediately followed as clear proof of the
Unions’ authorization of the sabotage. See United Air Lines,
Inc. v. Air Line Pilots Ass’n, Int’l, 563 F.3d 257, 272 (7th Cir.
2009) (“An employer may meet the clear proof standard” by
relying on evidence of union members’ unlawful conduct “in
combination with evidence of a union’s coded communications
to its members to engage in an unlawful job action.”).
Added to that evidence is the Unions’ failure to
cooperate with the police investigation of the sabotage. One
Union leader wrote in an email that “we have an obligation to
our members even when they are totally in the wrong, if that
proves to be the case.” (J.A. at 5831.) That leader also wrote
an email strategizing how to “rebut, or at least confuse, the
sabotage claims” during the investigation. (J.A. at 5842.)
Thus, a logical inference of ratification under an agency theory
is permissible, and the District Court usurped the role of the
jury by concluding that Care One had not presented clear proof
of that. See Cox v. Adm’r U.S. Steel & Carnegie, 17 F.3d 1386,
1409 (11th Cir.) (“From the Union’s failure to act, a reasonable
jury could conclude that the Union ‘knowingly tolerated’ the
situation, and thereby ratified it.”), modified on reh’g on other
grounds, 30 F.3d 1347 (11th Cir. 1994). And the evidence of
authorization and of ratification is mutually reinforcing, each
piece strengthening the inferences to be drawn from the other.
I do not believe, as my colleagues do, that Care One’s
evidence fails as a matter of law to meet the required
evidentiary standard. The Majority’s and the Unions’
insistence that no fair reading of the evidence could lead a
properly instructed jury to conclude that the Unions crossed the
line into unlawful behavior has the ring of “nothing to see here;
move along.” I think the record shows that there is indeed
25
something to see, and a jury should see it. The Majority’s
efforts to distinguish the facts in Fry v. Airline Pilots
Association, International, 88 F.3d 831 (10th Cir. 1996), from
the facts here (see Maj. Op. at 28), demonstrate precisely why
a jury should look at all the evidence. What has been offered
as proof of authorization or ratification goes well beyond only
the “vague statements” and post-hoc “condemnation of the
vandalism” that the Majority addresses. (Maj. Op. at 28.)
While the Majority is correct that the Norris-LaGuardia Act
reflects Congress’s view that “unions require heightened
protection” in exercising their right to collectively bargain
(Maj. Op. at 23), it is just as true that businesses deserve better
protection than none at all, which is what the Majority’s
interpretation of the standard of proof appears to provide.
In sum, I would vacate and remand to allow a jury to
consider whether the Unions threatened a campaign of
regulatory opposition and criminal prosecution, a campaign
with no proper nexus to their labor negotiations, and whether
they authorized or ratified acts of sabotage. A fair-minded and
properly instructed jury might well side with the Unions, but it
could side with Care One, and Care One should have its day in
court.
26